Pilbrow v Pearless de Rougemont & Company
Jurisdiction | England & Wales |
Judge | LORD JUSTICE SCHIEMANN,LADY JUSTICE BUTLER-SLOSS |
Judgment Date | 17 March 1999 |
Judgment citation (vLex) | [1999] EWCA Civ J0317-12 |
Court | Court of Appeal (Civil Division) |
Docket Number | CCRTI 98/1438/2 |
Date | 17 March 1999 |
[1999] EWCA Civ J0317-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE LLOYD)
Royal Courts of Justice
Strand
London WC2
Lady Justice Butler-Sloss
Lord Justice Schiemann
CCRTI 98/1438/2
JOHN CRITCHLEY (Instructed by Hodkin & Company, West Sussex, RH19 2NS) appeared on behalf of the Appellant
RICHARD ROBINSON (Instructed by Pearless De Rougemont & Co., West Sussex, RH19 3BA) appeared on behalf of the Respondent
This case concerns the duties of a firm of solicitors in relation to a client who asks to see a solicitor but is thereafter advised by someone who, unknown to him is not a solicitor. Must he pay the eventual bill?
This appeal is from H.H Judge Lloyd. He had dismissed an appeal from District Judge Robinson. That judge had held that the firm of solicitors were entitled to be paid. The defendant gave evidence that he had telephoned a firm of solicitors. He asked for an appointment to see a solicitor about a family matter. The person at the other end (who it appears was a receptionist) told him that she would arrange an appointment with Miss Lee-Haswell. At that time Miss Lee-Haswell was not a solicitor; nor had she been admitted as a member of the Institute of legal executives. At that time, and indeed till after the firm sent their bill, Mr Pilbrow believed that Miss Lee-Haswell was a solicitor. She for her part did not know that he had asked for a solicitor or that the receptionist, on hearing from him that he wanted to see a solicitor, had referred him to her. That being so, she had never told him that she was not a solicitor. Miss Lee-Haswell gave evidence that at the relevant time she was "responsible to Mrs. Deborah Richards—Head of Litigation and Partner". She had regular meetings with Mrs. Richards and within the firm she was the person who dealt with family work. There is no reason to suppose that, in relation to Mr Pilbrow's affairs, she ever consulted Mrs Richards. She said she had no idea about Client Care letters. She accepted that there was no way that the client could know that she was not a solicitor. On the other hand, what she did was up to the standard of a competent solicitor and equally a competent partner who had informed a client of the status of the person doing the work would, absent any specific instructions from a client to the contrary, have been justified in leaving the work which Miss Lee-Haswell did to a person of Miss Lee-Haswell's standing in the firm. There is no very clear evidence as to whether the amount which Mr Pilbrow was charged was appropriate given that a solicitor was not in fact doing the work but someone with lesser paper qualifications was. We note that, when Mr Pilbrow queried the bill in short form sent by the solicitors in West Sussex, Miss Lee-Haswell sent him what they claimed was "a fully drawn bill prepared by a costs draughtsman which will give you a much more detailed breakdown of the work undertaken for you". We note that this bill charged an hourly expense rate of £80 for "solicitor engaged". This was inaccurate. She may not have spotted it. She was not asked about it.
It is easy to see how Mr Pilbrow could believe that she was a solicitor and how she could be in ignorance of that belief. She had a lot of practical experience of family work and indeed did 80% of the family work in the firm. So there was nothing unusual in her eyes in being asked to do that sort of work. No doubt because this sort of misunderstanding can arise easily, the Solicitors Practice Rules 1990 provide in Rule 15(2)(a)
Every Solicitor in private practice shall, unless it is inappropriate in the circumstances, ensure that clients know the name and status of the person responsible for the day to day conduct of the matter and the principal responsible for its overall supervision.
However, it seems that this firm of solicitors did not keep to that rule. Certainly no client care letter was sent to Mr Pilbrow. Had it been the misunderstanding would have been avoided. No-one suggests that the sending of such a letter in the present circumstances would have been inappropriate.
As it was, Miss Lee-Haswell advised Mr Pilbrow, prepared instructions for counsel and instructed counsel. In due course Mr Pilbrow lost his case. He felt that the quality of care which he had received fell below the appropriate standard. He was sent a bill. He had already paid £800 on account. He refused to pay any more. The firm sued in the county court for just over £1800. He drafted his own defence in which he stated that he had found out that Miss Lee-Haswell was not a solicitor, that he would not have employed her as an advisor had he known that she was not a solicitor, that she mishandled the case, that a misrepresentation had induced the contract and that the contract ought to be rescinded. He also made a counterclaim which in essence was intended to be for damages for the firm's negligence.
The District Judge heard the case as an arbitration under CCR Order 19. He found against Mr Pilbrow. The latter then "appealed" to HH Judge Lloyd. In truth it was an application to set aside the arbitrator's award on the ground that the arbitrator had made an error of law. HH Judge Lloyd refused to do so. Thereupon Mr Pilbrow obtained the leave of the full court to pursue an appeal to this court in relation to the dismissal of his defence. That is the appeal which we heard. There is no appeal in relation to the dismissal of his counterclaim. The amount at stake is small but the legal points which arise are of some general importance.
The District Judge said the following:
"Getting down to first principles there was a contract for legal services between the plaintiff firm and the defendant Mr. Pilbrow. The contract was not with the fee earner Miss Lee-Haswell. Was there to be an implied term in that contract that it will be performed by a solicitor? Ordinarily, the answer is very definitely no, but was there an implied term of that nature here? How is the Court to approach the issue of there being a misrepresentation about the status of Miss Lee-Haswell? The plaintiffs say there was no misrepresentation i.e. there was no false statement of fact which induced the defendant to enter into the contract. They say no representation that Miss Lee-Haswell was a solicitor and at most they are to be criticised for non-disclosure. There is a crucial distinction between representation and non-disclosure and, put simply, remedies for non-disclosure arise only in a contract of utmost good faith such as insurance that those solicitors should be in the position of acknowledging non-disclosure is very very regrettable. The defendant says there was an implied representation that the fee earner was a solicitor and as a result he is entitled to rescission of the contract. If I were to find there was such an implied representation that would go against normal practice of distributing work in a professional firm, be they lawyers, accountants, surveyors or engineers. I do not find any such implied misrepresentation. In fact, the defendant puts his case that there was an express representation from a secretary or an administrative member of the staff. I do not find that such individual had...
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