No duty to warn another firm

Marsh v Sofaer and another ChD TLR 10 December

The claimant instructed the defendant firm of solicitors to advise her in respect of claiming maintenance under the Inheritance (Provision for Family and Dependants) Act 1975. Before the action came for trial, the claimant was prosecuted for six charges of carrying on the business of the company for a fraudulent purpose. In those proceedings she was represented by another firm of solicitors and convicted, being sentenced to nine months’ imprisonment. In a claim against the defendants for damages for personal injury occasioned in consequence of her convictions, the claimant asserted that the defendants were aware of, or ought to have been aware of, her lack of mental capacity and that they had a duty to communicate that concern to the solicitors representing her in the criminal proceedings. Had they done so, it is unlikely that she would have received a custodial sentence. In rejecting the claim, the Court held that not only was there no duty on the defendants to communicate their view as to the defendant’s mental capacity to her new solicitors, it was self-evident that without the consent of the client it was not open to the solicitor under one retainer to communicate without the knowledge and approval of his client, either what he had been told by his client or his opinion, to the other solicitor involved under another retainer for a different purpose. It could not be right that a solicitor on receiving instructions from his client was entitled to tell anybody who cared to listen either his opinion of the client’s voracity or the merits of the client’s case.