Unbundling: the rise of litigants acting in person with Solicitors working under a limited retainer
Lord Justice Jackson, giving the main judgment of the court in Minkin v Lesley Landsberg (Practising As Barnet Family Law) [2015] EWCA Civ 1152 held that the solicitor was not under a duty to give the broader advice or warnings for which the claimant contended.
In reaching his ruling, Jackson LJ laid out five principles he had derived from the applicable case law:
1. A solicitor’s contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake.
2. It is implicit in the solicitor’s retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out.
3. In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client.
4. In relation to (3), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told that which he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client.
5. The solicitor and client may, by agreement, limit the duties which would otherwise form part of the solicitor’s retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.
Agreeing with Jackson LJ, Lady Justice King emphasised “It goes without saying that where a solicitor acts upon a limited retainer, the supporting client care letters, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client’s specific instructions.
“It may well be that with further passage of time, tried and tested formulas will be devised and used routinely by practitioners providing such a limited retainer service.”
