Court of Appeal considers duties owed by solicitors operating advice helplines

A Court of Appeal decision handed down last week contains helpful guidance as to the circumstances in which solicitors may owe tortious obligations to prospective clients who seek limited and preliminary advice from a law firm's advice helpline - an increasingly common method used by firms to attract new business: Carol Miller v Irwin Mitchell LLP [2024] EWCA Civ 53.

The starting point in the Court of Appeal's decision was that Irwin Mitchell did assume a tortious duty to the claimant (a caller to its Legal Helpline), even though she was not at that stage a client of the firm. The issue was the breadth of that duty. In cases of this nature, whether a duty is owed (and, if so, its breadth) will turn on whether: (a) it was reasonable for the third party (in this case, the prospective client) to have relied on advice provided by the firm; and (b) the firm should reasonably have foreseen that the third party would do so.

In the present case, both the High Court and the Court of Appeal found that Irwin Mitchell had no duty to advise the claimant to notify the proposed defendant of her potential claim immediately, in the expectation that the defendant would notify its insurers and thereby protect the claimant's position to recover from those insurers. Irwin Mitchell's assumption of responsibility to the claimant was confined to the limited advice which it had in fact provided. It was not reasonable for the claimant to have relied on the firm to provide advice on how to protect her position generally and/or for the firm to expect that she would do so. The court did not have to decide whether Irwin Mitchell was obliged to advise on matters "reasonably incidental" to that assumption of responsibility, as it was clear that such advice was not reasonably incidental.

The Court of Appeal's decision will be welcomed by the increasing number of law firms using helplines to attract potential customers. The decision should however serve as a warning shot. Plainly, firms using helplines should ensure that their staff are appropriately trained in the relevant area of law but, equally, that they are clear on the boundaries within which they are permitted to advise. Since helplines are often staffed by unqualified individuals or junior solicitors, and advice is often provided quickly and with limited information, the risk of incorrect advice being provided is much greater than in the course of an ordinary solicitor/client relationship.

It seems likely that a broader scope of duty may be imposed where firms offer a helpline as an additional service to existing clients (but, as is sometimes the case, not pursuant to a contract), as compared to prospective clients. A court might more easily conclude that it was reasonable for a firm to expect that an existing client would reasonably rely on the advice – as their existing and trusted advisers – as compared to a prospective client where the call also serves as a sales pitch for the firm.

Interestingly, we are now left with two recent appellate decisions (this case and Spire Property Developments LLP v Withers LLP [2022] EWCA Civ 970, discussed below) in which the application of the "reasonably incidental" test to non-contractual claims against solicitors has been considered but not conclusively determined. A positive determination of this issue would be a welcome clarification of the law and, given what appears to be an increase in the prevalence of claims against solicitors by non-clients, such a decision may not be too far afield.

Background

The claimant, and appellant, Mrs Miller, had fallen down a staircase in her hotel on 13 May 2014 whilst on holiday in Turkey, resulting in an open facture to her leg and subsequent amputation.

Mrs Miller and her husband had purchased their holiday through a travel operator: Lowcostholidays. Whilst Lowcostholidays did not run the hotel, it contractually accepted responsibility to the Millers for any personal injuries which they sustained from the negligence of its suppliers. Mrs Miller's case was that Lowcostholidays were contractually liable for her injury.

At the time of the accident, Lowcostholidays was insured by HCC for accidental bodily injury occurring during the policy period in connection with their business. As is often the case, the policy contained a condition precedent requiring Lowcostholidays to "give written notice to insurers of the occurrence of any Bodily Injury … or of any circumstances that might give rise to a claim against the insured, and for which there may be liability under this insurance." Whilst it appears that Lowcostholidays may have been informed of the accident by an intermediary who booked the hotel on behalf of Lowcostholidays, it was clear that the individual responsible for dealing with insurance matters on behalf of Lowcostholidays was not informed, and so HCC was not notified.

Upon Mrs Miller's return to the UK she saw a television advertisement from Irwin Mitchell which encouraged her to call their Legal Helpline "to see how we can help." Mrs Miller made the call on 19 May 2014. She spoke to an adviser who, with the assistance of a proforma document, provided what the judge described at first instance as "some limited and high level generic legal advice." The adviser provided a summary of personal injury law and told Mrs Miller that her claim attracted a three year limitation period. Crucially, the adviser did not advise Mrs Miller to inform Lowcostholidays of the accident immediately.

Mrs Miller delayed in subsequently providing documents to Irwin Mitchell which meant that, by the time they were formally instructed and had sent a Letter of Claim to Lowcostholidays, almost two years had passed, such that HCC declined cover for breach of the notification clause. Lowcostholidays had by that time gone into an insolvency process.

Decision

The Court of Appeal dismissed the appeal (Lady Justice Andrews giving the lead judgment, with which Falk and Phillips LJJ agreed).

The focus of the Court of Appeal's decision was whether Mrs Miller was correct that Irwin Mitchell owed her a duty of care during her call to their Legal Helpline to advise her that she should notify Lowcostholidays of the accident immediately. At first instance, the judge considered that this would have resulted in a timely notification to HCC, and therefore avoided cover being declined.

The crux of Mrs Miller's case was that Irwin Mitchell had assumed a responsibility to advise her on what steps she needed to take in order to protect her position, because it had proffered advice on the applicable limitation period (ie it had provided some advice relevant to Mrs Miller protecting her position).

Lady Justice Andrews had "no difficulty" in accepting that Irwin Mitchell would expect callers to rely on the information provided by the Legal Helpline, and that it would be reasonable to do so. She therefore held that Irwin Mitchell assumed a limited assumption of responsibility for the task which they undertook: the provision of preliminary advice of a limited and high level nature. This was a conventional application of the Supreme Court's decision in NRAM v Steel [2018] UKSC 13 and the Court of Appeal's recent decision in McClean & Ors v Thornhill [2023] EWCA Civ 466 (see our summary here).

Mrs Miller argued that the contractual obligation on a solicitor to advise on matters "reasonably incidental" to their retainer (see Minkin v Landsberg [2015] EWCA Civ 1152), applies equally where a solicitor owes a tortious duty in the absence of a retainer. This was a matter considered by the now Lady Chief Justice in Spire, but on which she preferred not to express a concluded view. Lady Justice Andrews similarly did not express a concluded view, but gave Mrs Miller's argument short shrift on other grounds: "I do not consider that by any stretch of the imagination, advice about notifying a tour operator of the accident could be said to be 'reasonably incidental' to advice about the limitation period…"

In the alternative, Mrs Miller argued that it was not necessary to rely on the "reasonably incidental" test. She said that, by advising on limitation, Irwin Mitchell had voluntarily assumed a responsibility for advising her on the general topic of what she needed to do to protect her position; ie that this was within the confines of the assumption of responsibility, rather than merely incidental to it. As to the limitation advice which Irwin Mitchell provided, Lady Justice Andrews described this as "specific" and "accurate". She said that she could not "see how one can possibly reach the position that just by informing Mrs Miller [as to the limitation position, Irwin Mitchell] assumed a responsibility to advise her to take a step to safeguard against the risk that the tour operator already knew about the accident but nevertheless would not notify its insurer timeously….". Applying the NRAM test, she held that Irwin Mitchell did not accept a responsibility to provide wider-ranging advice on steps which Mrs Miller might need to take to protect her position, and that it would have been unreasonable for her to have relied on the firm to provide that advice or to have thought that it was providing it.