Factual and Procedural Background
This appeal arises from a professional negligence claim brought by the Respondents, two limited liability partnerships ("the Developers"), against the Appellant, a firm of solicitors ("Withers"). In 2012, Withers was retained to act on the Developers' purchase of two high-value Grade II listed properties in London ("the Properties"). Post-acquisition, the Developers discovered three extra-high voltage electric cables ("HVCs") running under the Properties, owned by UK Power Networks ("UKPN"). The Developers alleged Withers was negligent both in failing to identify the HVCs prior to purchase and in failing to adequately advise them in 2014 regarding their rights and remedies upon discovery of the HVCs.
After a nine-day trial in January 2021, the trial judge found Withers liable for breach of contract and negligence in both respects, awarding damages totalling over £2 million. Withers appeals only the finding that it owed a tortious duty of care in 2014 to advise the Developers on their rights and remedies against UKPN following the discovery of the HVCs.
Legal Issues Presented
- Whether Withers assumed a tortious duty of care in 2014 to advise the Developers on their rights and remedies against UKPN regarding the HVCs.
- Whether the Developers reasonably relied on Withers' advice or lack thereof concerning their rights against UKPN.
Arguments of the Parties
Appellant's Arguments
- Withers accepted a duty only to exercise reasonable care in giving advice it chose to provide, not to undertake a wide-ranging analysis of remedies against UKPN.
- Mr Joy did not explicitly request advice on the Developers' rights against UKPN if UKPN lacked entitlement to lay the cables.
- Ms Robinson did not purport to give such advice in her communications.
- It would have been premature to advise on remedies before UKPN's position was known.
- Comprehensive advice on this issue would have required substantial research beyond the scope of the assumed duty.
- The Developers were sophisticated clients who would have requested such advice explicitly if desired.
- The relevant email correspondence focused on past events and the circumstances of non-discovery, not on future remedies or strategies.
- The absence of specific questions about remedies negates any assumed duty to advise on them.
- Reliance on the advice as comprehensive was unreasonable given the scope of the requests and responses.
Respondents' Arguments
- Mr Joy’s emails, especially the 28 January 2014 email, contained clear requests for advice on UKPN's rights of access and how to get the HVCs moved at no cost to the Developers.
- Ms Robinson voluntarily addressed both voluntary and statutory wayleaves in her February 2014 email and thus assumed a duty to provide full advice on the Developers’ rights.
- Ms Robinson failed to advise that voluntary wayleaves do not bind successors and that statutory wayleaves are limited in duration, thereby giving incomplete and misleading advice.
- The Developers were entitled to expect a reasonably careful solicitor to review the relevant statutory regime and provide an explanation of rights and remedies.
- Withers had an ongoing professional relationship with the Developers and had been retained on related matters, reinforcing the duty to advise.
- Mr Joy reasonably relied on the February 2014 email as definitive advice that no rights or remedies existed.
- Recent Supreme Court decisions support the approach that the scope of duty is governed by the purpose for which advice was sought, which here was to assist in negotiations with UKPN to have the cables moved at no cost.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| White v Jones [1995] 2 AC 207 |
Assumption of responsibility creates a duty to exercise reasonable care when giving advice, even if gratuitous. |
Applied to establish that Withers assumed a duty of care by voluntarily giving advice in response to a request. |
| Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 |
Standard of care for professionals is that exercised by a reasonably competent practitioner. |
Referenced by Withers to argue that the scope of duty assumed was one a reasonable solicitor could adopt. |
| Williams v Michael Hyde [2000] Lloyd's Rep PN 823 |
Professional duty of care and scope of responsibility in advice. |
Invoked by Withers to support reasonableness of their interpretation of duty scope. |
| Amersfort Ltd v Kelly Nichols & Blayney [1996] EGCS 156 |
Limits on duty to advise in one-off enquiries from former clients. |
Relied on by Withers to argue no duty to advise on unasked questions. |
| Midland Bank Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384 |
Solicitor's duty limited to tasks instructed and agreed; advice "reasonably incidental" to instructions. |
Used to frame the scope of contractual duties relevant to the retainer context. |
| Minkin v Lansberg [2015] EWCA Civ 115 |
Clarification on scope of solicitors' duties and incidental advice. |
Supports principle that solicitors need not undertake investigative tasks beyond instructions. |
| Lyons v Fox Williams LLP [2018] EWCA Civ 2347 |
Limits on solicitors' duty to advise on matters outside scope of instructions. |
Confirmed no duty to carry out investigative tasks beyond agreed scope. |
| Credit Lyonnais SA v Russell Jones & Walker [2002] EWHC 1310 (Ch) |
Solicitor must inform client of risks arising in the course of agreed tasks. |
Distinguished from the present case as imposing limits on scope of duty. |
| Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 |
Foundation of tortious liability for assumption of responsibility in giving advice. |
Applied to assess whether Withers assumed responsibility in giving advice. |
| Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 |
Scope of professional duty governed by purpose for which advice was sought. |
Considered but held inapposite for scope of assumed responsibility in this case. |
| Khan v Meadows [2021] UKSC 21 |
Similar principles on scope of duty and purpose test in negligence. |
Referenced in support of the Developers’ argument on scope of duty. |
| Gilbert v Shanahan [1998] 3 NZLR 528 |
Definition of matters "reasonably incidental" to instructions. |
Used to illustrate limits of scope of solicitors’ duties. |
| Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd; South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191 |
Scope of duty in tort and recoverability of damages. |
Discussed in relation to the purpose test and scope of duty. |
| Williams v Natural Life Health Foods [1998] 1 WLR 830 |
Objective test for assumption of responsibility. |
Applied to assess whether Withers objectively assumed responsibility. |
| Shepherd v Byrne and Partners LLP [2017] EWHC Ch |
Scope of solicitor's duty in one-off enquiries. |
Referenced as relevant authority on limited duties in informal advice. |
Court's Reasoning and Analysis
The court focused on whether Withers assumed a duty of care in 2014 to advise the Developers on their rights and remedies against UKPN, particularly if UKPN lacked legal authority for the HVCs. The analysis was grounded in objective construction of the email exchanges between Mr Joy and Ms Robinson, viewed in context.
The court found that the 2014 communications primarily concerned retrospective inquiries into what was known or should have been known at the time of purchase in 2012, rather than a request for forward-looking advice on remedies or strategies against UKPN. The key email of 28 January 2014 contained three specific questions focused on seller enquiries and statutory rights of access, each relating to knowledge and facts at the time of acquisition.
Ms Robinson’s February 2014 reply answered those questions narrowly and defensively, addressing the statutory and voluntary wayleave regimes only to explain why the cables might not have been discovered, without extending into advice on potential remedies or rights to compel UKPN to move the cables or pay compensation.
The court rejected the Developers' interpretation that the final paragraph of the 28 January email broadened the scope of the inquiry to include advice on remedies or negotiating strategy. It held that Withers did not assume responsibility to advise on such matters, given the limited and specific nature of the questions asked.
The factual uncertainties at the time, including lack of information about UKPN’s legal authority, supported the conclusion that advice on remedies was premature and outside the scope of the assumed duty. The court emphasized that the assumption of responsibility must be judged objectively and without hindsight, and that the subjective reliance of Mr Joy on the advice did not alter the scope of the duty assumed.
The court also distinguished the scope of duty from the standard of care, rejecting Withers' argument that the Bolam test applied to the scope question. Instead, scope is a legal question of objective construction, while breach is a separate question of standard of care.
Finally, the court acknowledged the importance of solicitors being able to respond to informal or one-off requests for advice without incurring unintended liability, and the need for clarity on limits of any assumed responsibility.
Holding and Implications
The appeal is allowed. On an objective reading of the relevant communications, Withers did not assume a legal responsibility to advise the Developers on their rights and remedies against UKPN in the event that UKPN could not prove a right to lay or maintain the HVCs.
The direct effect is that Withers is not liable for negligence on the 2014 claim. The decision applies established legal principles to the facts without creating new precedent. It underscores the necessity for clear scope definitions in informal legal advice and the limits of assumed responsibility in such contexts.