Conduct and service

The limits of a retainer

How far does a solicitor's responsibility extend when advising the client? Should the solicitor advise the client about issues that some would perceive to be perfectly obvious?

These questions have caused problems for many firms, with disastrous consequences for some.

The example that follows shows how careful solicitors must be when advising a client.

Even if failure to tell the client about something assumed to be obvious isn't deemed to have been negligent, or as in this case, not even an inadequate service, it can still give rise to a time-consuming complaint.

The facts were simple.

The client was buying a property and arranged to have a detailed survey of the premises carried out.

A copy of the survey was supplied to the solicitors, who noticed that it recommended several specialist surveys, including one on the central heating system.

The solicitors told their client they would find out when the system was last serviced.

They wrote to the seller's solicitors, copying the letter to their client, asking for an up-to-date test certificate and the date of the last inspection.

The sellers provided a copy of a receipted bill for the last time the boiler had been serviced, which was copied to the client.

The client took no further action, but exchanged contracts and the purchase was completed.

Shortly afterwards she noticed the boiler was leaking.

Before anything else could be done, the boiler caught fire, damaging the property.

The question to be decided in dealing with the subsequent complaint to the Law Society was whether the solicitors could reasonably have expected the client to realise that she had been supplied with only an invoice and not a test certificate - or should they have pointed this out and advised the client to have a specialist survey carried out?

As it happened, before obtaining the copy invoice the solicitors had reminded their client that if she wanted to have the surveys carried out she should arrange them herself.

Therefore, the conclusion was that the solicitors had done what they could reasonably have been expected to do and it was unreasonable to expect them to point out to their client that what they had obtained was only a receipted invoice, not a test certificate.

But it was something they could easily have mentioned, or at least they could have reminded the client that it did not obviate the need for a survey.

The failure to do so still cost the solicitors dear in terms of wasted time.

Every case before the adjudication panel is decided on its individual facts.

This case study is for illustration only and should not be treated as a precedent