Carol Miller v Irwin Mitchell LLP – A lesson for litigation claimants
The recent appeal decision in Carol Miller v Irwin Mitchell LLP [2024] EWCA Civ 53, whilst upholding the decision of the High Court in favour of Irwin Mitchell LLP, is otherwise a reminder of the various pitfalls that can potentially beset a good claimant.
Mrs Miller had the makings of an excellent claimant for the purposes of her personal injury claim. Her case was one of real tragedy. On 13 May 2014 whilst on holiday with her husband in Turkey, she slipped and fell going down some stairs and broke her leg so badly that it was eventually amputated after substantial further medical intervention.
Mrs Miller, having seen an advert on TV in hospital, made a call to Irwin Mitchell LLP’s ‘Legal Advice Line’ on 19 May 2014. In that call, Mrs Miller was given some general advice about personal injury claims and the limitation period of 3 years by the ‘adviser’ to the call. That adviser subsequently referred the matter to the Travel Litigation branch of the firm, who sought to contact Mrs Miller to effectively ‘sign’ Mrs Miller up as a client. Despite requesting the information needed to open a file and commence acting for Mrs Miller, the requisite information was not received from her until April 2015. It was not until January 2016 that Irwin Mitchell LLP confirmed with Mrs Miller that they could proceed with her claim and sent her a Conditional Fee Agreement to sign, subsequent to which they sent the Letter of Claim to Lowcost Holidays Spain SLU (Lowcost) (the travel operator) in February 2016.
Lowcost’s insurers HCC International Insurance Company PLC’s (HCC) response was to decline cover for the claim, on the basis that Lowcost had failed to notify them of the incident at the time it occurred, and therefore failed to comply with the provisions of the policy of insurance. Critically, Lowcost went into administration in July 2016. Mrs Miller had not contacted Lowcost directly to notify them of her claim back in May 2014, and consequently Lowcost had not notified their insurers.
Personal injury claims rely heavily on the ‘deep pockets’ of the insurers of the parties against which the claims are made. Mrs Miller found herself in a position where the insurer was refusing to come to the table, and the party she could otherwise sue would not be in a position to pay any successful award. The case Mrs Miller subsequently advanced was that Irwin Mitchell LLP should have advised her from the outset to notify Lowcost of the incident, and in failing to do so had breached their duty of care to her and were professionally negligent.
The Appellate Court rightly upheld that the initial ‘Advice Line’ call between the Mrs Miller and Irwin Mitchell LLP did not create a contract of retainer (whether express or implied). As regards any equivalent duty of care in tort to Mrs Miller, in assuming responsibility by agreeing to give her the preliminary advice, it was upheld that the ambit of the duty was confined to the advice being general in nature, and subject to more detailed assessment; just because the adviser volunteered to advise on the limitation period, they had not assumed responsibility to advise Mrs Miller on what she personally needed to do to protect her position. It would not have been reasonable in the circumstances for Mrs Miller to have relied on the provision of such advice.
The Appellate decision also reinforced that, in general, a solicitor is not obliged to advise a client to take steps to safeguard against the risk of unenforceability of a claim due to the financial position of the other party unless they are specifically put on notice as to financial difficulties (per Pearson v Sanders Witherspoon [2000] PNLR 110).
The financially precarious, uncertain and fraught status of the post-Covid World is appreciated by most, I think. What it has added to the realm of litigation is an ever-increasing risk that even if you have a good claim against a defendant, their solvency (or lack thereof) may leave your case dead in the water.
Besides the inherent reality that a broke defendant is not a defendant worth pursuing, what potential claimants should take away from this case are a few things:
1. If you think you have a legal claim, act on it. Time prejudices all.
2. The more your solicitor knows, the better they can usually advise you.
3. Commit to the retainer – whilst the prospect of incurring legal costs is scary, defining the scope with which you have engaged your legal representative to act for you means that you, and your claim, are best protected.
