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No third party duty to client's family, judge rules

26 July 2010

A solicitor advising a client over a damages claim did not owe a duty of care to the client's family in relation to the settlement achieved, a judge has ruled.

Lord Woolman in the Court of Session dismissed an action by Elizabeth McLeod and her children against the partners of the former legal firm of Campbell Smith WS, which alleged negligence by the firm in advising Mrs McLeod's late husband when he settled a claim against his former employers after he developed the asbestos related condition, pleural plaques, and chronic obstructive airways disease.

The employers had offered to settle the claim on the basis of either £10,000 in full and final settlement, or £5,000 in provisional damages (which allows to claimant to return with a further claim if certain possible developments of their condition actually occur). Mr McLeod's solicitor only mentioned the full and final offer to him, which Mr McLeod accepted. Medical advice at the time suggested a low risk of his developing a further asbestos related condition, but he subsequently died of mesothelioma. The case was settled before the 2007 Act of the Scottish Parliament which gave the surviving family the right to bring a further action of damages in such cases.

The pursuers claimed that the solicitors were negligent in not advising Mr McLeod of both offers and the consequences of accepting each. By doing so they negligently deprived him, and the pursuers, of the option of bringing a further claim.

Lord Woolman noted that although there was not yet an authoritative decision on the point, the English case of White v Jones appeared to have been adopted into Scots law, giving a claim to a disappointed beneficiary when a solicitor had negligently failed to prepare a will before the intending testator died. However he agreed with the defenders that the present case was different in that since the recent legislation, there was no gap in the law needing to be filled; and because there was a potential conflict of interest between Mr McLeod and his family as to which offer he should take.

The solicitors, he added, should not be taken as having assumed responsibility for the family's interests when they advised Mr McLeod. And if liability was imposed in this case, there was "no line that could sensibly be drawn" with other cases, and a solicitor providing any advice would have to take into account any potential financial impact not only on the client, but on the client's family. "That would result in a mushrooming of potential liability."

For all these reasons, he said, the law should not impose a duty of care in this case, and the case should be dismissed – except that a claim by Mrs McLeod as representing Mr McLeod was allowed to continue.

Click here to view the judgment.

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