It is usually clear from the terms of instruction or client care letter that a solicitor owes a duty of care to their client. However, the retainer does not have to be explicit and set out in writing. In some circumstances it can be implied from the conduct of the parties and the test if that conduct is consistent with only with the solicitor being retained as a solicitor for the alleged client.

This possibility leaves the door open for a Professional Negligence claim against a solicitor where there is no written evidence setting out the terms of what the solicitor agreed to do and a reliance on the advice provided has caused a loss to the “client”.

Can I claim if I am not a client?

In exceptional circumstances a person, known as a “third party, who is not a client of a solicitor may nevertheless have a right to bring a Professional Negligence claim against that solicitor.

If the third party suffers foreseeable harm as a consequence of the negligence of the solicitor which is foreseeable physical damage and direct financial loss resulting from that damage, then the law will generally infer there is a duty of care owed by the solicitor to the third party.

However, if the damage is only economic loss the third party will often have acted or relied upon statements made by the solicitor. If those statements were negligent to establish a duty of care you must show that there was:

• foreseeability of loss at the time when the statement was made
• a sufficient degree of proximity between the parties
• that it should be fair just and reasonable for the duty to be imposed.

This test was set out in the case of Caparo v Dickman [1990], though the Supreme Court later found that the Court in Caparo had not intended to establish a rigid test.

An example of a successful claim in such circumstances arose in White v Jone [1995] where House of Lords allowed a disappointed beneficiary under a will to recover compensation for the lost legacy under a will which the solicitor was instructed by the testator to prepare. The beneficiary had no other remedy and the estate had suffered no loss which it could claim against the solicitor.

This is a technical area of law but if you think you have suffered a loss as a result of negligence by a solicitor not obviously instructed by you or acting for you here at Jordans Solicitors we have the expertise to consider whether you may be entitled to compensation. Call us today on 01924 457171 or click here for a call back.


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