Practice and Procedure


PUBLISHED October 24, 2003

The claimant had failed on the evidence to establish that she had retained the defendant as a solicitor in an action for damages.Trial of preliminary issues in a claim for loss of chance. The claimant was an American citizen who was born in New York to British citizens on 7 January 1981. The claimant's ('C') birth was premature and induced. C suffered from a number of complications that required medical and surgical treatment as an infant. At age 18 months, C was diagnosed as suffering from severe cerebral palsy. In 1984 C's mother ('M') attended a conference at which the defendant ('D'), who suffered from cerebral palsy made a presentation. At that time and at all relevant times D was a practising solicitor. On 17 September 1986 M wrote to D via a third party. In her letter she queried whether C had a claim for damages for his medical condition and whether there was a limitation on the claim. She questioned whether she would need an international lawyer. She also informed D that she required legal aid. D replied in a letter on 1 May 1987 in which he stated that he had been "scratching his head" and that no action could be brought in the UK and that M would do well to instruct a US lawyer. The defendant ended his letter by wishing M and her family well. By a subsequent letter M and D arranged to meet on 29 July 1987. At the meeting, D stated that no claim could be brought in the UK, he made it clear that he could not act on C's behalf in any claim and that he had no knowledge of the limitation period for a claim in New York law. At the end of the meeting neither party expected to have any further dealings. In 1993 M learned that C's medical condition may have had a particular cause. She subsequently discovered that the absolute limitation period for claims in New York was 10 years. In 2002 C commenced the current claim against D by means of his litigation friend M. On 2 May 2003 it was directed that a number of preliminary issues be tried. The primary issues were: (i) whether D had been retained on behalf of C in an action for damages; and (ii) whether D owed the claimant a common law duty.HELD: (1) The defendant was not retained on behalf of C in an action for damages. It was common ground that there was no explicit retainer in place. Applying Midland Bank v Hett Stubbs & Kemp (1979) 1 Ch 384 a retainer was presumed if the relationship of solicitor and client was established. On the facts of the present case no such relationship could be established. The letter of 17 September 1986 constituted an offer of retainer. D's reply did not indicate that he had accepted that offer. The use of the phrase "scratching my head" in D's letter did not mean that he had applied his mind as a solicitor. The letter gave no more than basic legal advice. The manner in which D had ended his letter indicated that he envisaged no further involvement with M or C. The occurrence of the meeting of 29 July 2003 was not of itself sufficient to establish the relationship of solicitor and client. (2) D did not owe C a common law duty. The basic common law principle was that no duty of care arose between two parties unless they had entered into a contractual agreement. Whilst there were a number of exceptions to that principle, D's conduct had not brought him within those exceptions. In particular D had not involved himself in C's affairs and entered upon the matter as per White & anr v Jones & anr (1995) 2 AC 207.Judgment accordingly.