Miller v Irwin Mitchell [2024] EWCA Civ 53
The Court of Appeal’s recent judgment on Miller is likely to cement the position on legal helplines, informal advice and Legal Expense Insurance (LEI).
The claim itself centres around an extremely sad set of facts surrounding a package holiday in 2014 on which the claimant fell down a set of stairs, breaking her leg before a series of complications resulted in it being amputated.
She reported the accident and complications to her hotel and tour operator, but they did not report this to their insurers. Upon returning to the UK, she then sought advice from a legal helpline, which provided some initial advice over the phone covering limitation. The matter was referred to the defendant’s specialist travel injury litigation department, which offered the claimant a conditional fee arrangement to represent them on a formal basis in the claim.
There was a substantial delay between the initial helpline advice being taken and the claimant returning her formal retainer and relevant documents. As a result, a letter of claim was not sent until early 2016. The tour operator then referred the matter to their insurer who in turn declined to cover the claim due the failure by the operator to comply with the notice provisions. The tour operator went into administration in July 2016, leaving the claimant was no reasonable prospects of recovering any losses if awarded from the operator or their insurer, with the facts having occurred prior to the Third Party (Rights Against Insurers) Act 2010 came into force in 2016.
As a result, the claimant launched the proceedings in question alleging she had entered into an express retainer with the defendant at the date of the initial call, or alternatively a retainer was implied by the conduct of the parties at that point and further in the alternative the defendant owed the claimant a common law responsibility in tort. The claim was unsuccessful in first instance and on appeal the claimant’s key argument was that the defendant ought to have advised her to inform the tour operator about the incident and was under a duty to do so, as by advising on limitation the defendant had assumed a duty to advise her to take reasonable steps to protect her position. It was argued that the defendant ought to have known that failing to report to the tour operator could leave the tour operator in breach of any insurance policy it might have.
The Court of Appeal did not agree with this. It concurred with the initial judgment [at 121] finding the helpline call gave “some limited high level and generic legal advice about personal injury claims, but it did not purport and cannot have been understood to be complete or comprehensive legal advice about her claim, and it was a preliminary to further conversation.” It is noted it was recorded that the claimant was given advice on the scope of the helpline, who in turn referred the matter to the relevant claims-handling department for formal advice and the delays arose after this referral.
The Court found the claimant was entitled to rely on the advice given on the helpline, but that said advice was ‘general and preliminary’ and not comprehensive nor complete advice, with more detailed advice to follow if the claimant (or any prospective caller) was to proceed with the matter beyond the call.
Furthermore, the Court found it would not be in the advisor’s reasonable contemplation at the early stage that there was a risk an insurer would refuse to cover due to failure to notify it at such an early stage, nor is a solicitor obliged to advise a client to take steps to safeguard against an unenforceable judgment due to insolvency unless they are put on notice of financial difficulties (Pearson v Sanders Witherspoon [2000] PNLR 110).
Although based on a very difficult situation, the decision itself is one ACSO welcomes as it ensures continued access to legal helplines for consumers. The use of helplines provided by legal expense can help resolve disputes in both a timely and cost-effective manner and as a means for consumers to get swift, effective advice.
ACSO’s LEI Working Group will continue to promote the benefits and value of LEI for consumers, helping inform policymaking and connecting stakeholders with a common interest in the subject, and in access to justice generally.