On 13 May 2014, Mrs Miller slipped and broke her leg while on holiday in Turkey. In a UK hospital six days later she saw an advert for Irwin Mitchell's 'Legal Helpline' and called them for advice. The helpline adviser gave Mrs Miller some high level generic advice about personal injury claims and informed her of the three year limitation period.

What the helpline adviser did not do, was tell Mrs Miller to notify her tour operator and request that it notify its insurers. That proved to be a significant issue for Mrs Miller who ultimately lost her leg in November 2015. Irwin Mitchell sent a letter of claim to the tour operator on 22 February 2016 and the tour operator went into administration in July 2016.

Mrs Miller's only practical recourse was against the tour operator's insurer, however that insurer declined cover because it had not been notified of the accident when it happened. So instead of suing the insolvent tour operator, Mrs Miller sued Irwin Mitchell for negligently failing to advise her to notify the tour operator of the accident when they spoke to her on the helpline in May 2014.

Duties of care to prospective clients

After her case failed in the High Court, Mrs Miller appealed to the Court of Appeal where the court had to determine the extent of any duty of care Irwin Mitchell owed to Mrs Miller at the point when she called the helpline.

Clearly, at that point Mrs Miller was only a prospective client and not having a retainer with Irwin Mitchell, the existence and extent of any duty of care would be decided under common law principles as set out in Spire Property Development LLP v Withers LLP.

It was accepted that the helpline offered some legal advice and, therefore, Irwin Mitchell had assumed a responsibility to take reasonable care in giving that advice. The key question was the extent, or scope, of the responsibilities Irwin Mitchell had assumed to Mrs Miller when tendering advice on the helpline.

What is high level preliminary advice?

The court held that Irwin Mitchell had assumed a duty to give high level preliminary advice. Determining what that means in any given situation must be a fact specific question. In this instance, the Court suggested a solicitor might come under a duty to inform a prospective client of any obligatory legal steps needed to preserve their claim.

The obvious example of this might (though the Court did not go so far as to say would) be to raise a claim prior to a limitation date and Irwin Mitchell's helpline had done that.

However, there was no legal obligation on Mrs Miller to inform the tour operator of her accident in order to preserve her claim and, while that might have been a reasonable step for her to take, Irwin Mitchell's pre-retainer duty of care did not stretch to providing the prospective client with advice about steps she might reasonably take to protect her position generally.

The importance of insurance

Now, as insurance lawyers, it is fair to say that the existence of insurance cover is front and centre in our minds. Indeed, some variant of 'have you notified your insurers?' or 'have you told them to notify their insurers?' is generally amongst the first questions we will ask.

However, as this judgment demonstrates, that is not the case for many lawyers out there. The Court of Appeal referred to the case of Crossan v Ward Bracewell from 1984 which found that a solicitor was not obliged to inform a prospective client to notify their own insurers, let alone to check whether a prospective defendant had notified theirs.

The Court also opined that a solicitor is not generally obliged to advise a client to take steps against the risk of a judgment being unenforceable, unless they are specifically put on notice that the other party is in financial difficulties. Notwithstanding this, particularly in the field of commercial disputes, advising on the practical benefit of engaging in a dispute is something we consider is very much standard practice, as is notifying insurers timeously.


James Jerman

Senior Associate