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Extent of duty of care

Litigation Letter

Extent of duty of care

Tom Hoskins Plc v EMW Law (a firm) [2010] EWHC 479 (Ch), [2010] All ER (D) 54 (Apr); NLJ 23 April p584

A solicitor is not normally required to give general commercial advice to a client. The solicitor only has to expend time and effort in what he has been engaged to do and for which the client has agreed to pay. He is under no general obligation to expend time and effort on issues outside the retainer. However if, in the course of doing that for which he is retained, he becomes aware of a risk or a potential risk to the client, it is his duty to inform the client. In doing that he is neither going beyond the scope of his instructions nor is he doing ‘extra’ work for which he is not to be paid. He is simply reporting back to the client on issues of concern which he learns as a result in the course of carrying out his express instructions … if in the course of carrying out instructions within his area of competence, a lawyer notices or ought to notice a problem or risk for the client of which it is reasonable to assume that the client may not be aware, the lawyer must warn him. The solicitors were instructed to provide legal advice and assistance in connection with the assignment of the leases of a chain of public houses. An essential part of the transactions was the obtaining of the landlords’ consent, because the lease could not be assigned without it.

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