Professional Negligence: Consideration of the scope and duty for professionals under a limited retainer

Broadly, professional negligence is when a professional fails to undertake the duties and responsibilities owed to the requisite standard, resulting in a financial loss, physical damage or otherwise.

The scope of duty between a professional and their client can be defined in writing under a retainer, which governs the basis of professional liability and duties that are owed to the client.

The recent County Court case of Harry v Curtis Law LLP considered the scope of duty owed by a professional acting under a limited retainer. The firm of solicitors were instructed to act for the individual on a low fixed fee conveyancing package, for the purchase of a new build house on a development in Plymouth.

The scope of the retainer was to perform an investigation of title and local authority searches during the conveyancing process, which they duly performed. The search gave no results of any major road schemes in proximity to the property. This was incorrect. In fact, the Forder Valley Link Road was being constructed, within 50 metres of the property. The Claimant sued for a breach of duty, claiming that the firm of solicitors should have advised her of the road, as they would not have gone ahead with the property purchase if this fact had been known.

Successful arguments were made that meant the low fee and limited retainer constrained the responsibilities of the firm of solicitors during the conveyancing process. The firm of solicitors were entitled to rely on solely the results of the searches and no further enquiries were necessary (including reading of the planning material relating to the development as a whole).

In addition, there was an element of time pressure put on the firm of solicitors, owing to the developer incentivising the individual to complete on the transaction on a timely basis. The firm of solicitor’s defence was two-fold here, being that under the time constraints, the wider investigations would have been impossible to undertake. Second, even if additional time was given, they would have not gone beyond the results of the search in any event. The latter argument was relied upon and preferred by the Court.

Professionals should be aware that time pressure would likely not be sufficient as a bar to a finding of negligence. Any duties or responsibilities should be completed within the timescales provided for under the retainer. Professionals should warn their client in clear terms, in advance of any deadlines being missed. Should a professional fall short of this, it may well amount to a breach of duty.

The Court subsequently dismissed the claim, resulting in an interim order for costs being imposed on the Claimant. This judgment raises an interesting question on the extent of which a firm of solicitors can limit the scope of their retainer whilst taking on a large volume of low fee work, before the standard of work that is required is no longer met, such to amount to a finding of negligence.

Our Dispute Resolution team are on hand to assist in professional negligence claims. We encourage you to contact our experienced team for specialist advice and assistance, by contacting us here or by email: