Rights Ben Ella Amelia And Harry

Introduction

The principal issue which is discussed in this essay is whether J Simmons and Co is liable for professional negligence and if Ben, Ella, Amelia and Harry have a cause of action against them. A related issue in this essay relates to conflict of interest. The essay will first discuss the liability of J Simmons and Co towards Ben and Ella and following that the essay will discuss liability towards Amelia and Harry. Finally, the essay will provide the conclusion based on the law discussed.

The issue involved in this scenario is whether J Simmons and Co is liable for professional negligence and if Ben and Ella have a cause of action.

Professional negligence is defined in law as breach of duty that is owed by a professional to his client. This duty is established where there is a contractual relationship between the professional and the client which is sufficiently proximate to establish such a professional duty. The legal authorities on the question of professional conduct of lawyers indicate that lawyers are expected to act with reasonable care and skill when representing their clients or acting on their behalf. The failure to employ a reasonable standard of care and skill can lead to action in professional negligence against lawyers.

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In cases involving professional negligence, the actions of defendants are measured on the basis of three factors, which are, foreseeability, proximity and reasonableness. Foreseeability relates to the foreseeability of the consequences of the action; proximity relates to the close nexus between the action of the defendant and the harm caused to the victim; and reasonableness relates to the justice in imposing a duty of care on the defendant.

In applying these standards to professionals, courts apply the standards of what a reasonable professional would do under similar circumstances; therefore, the standard of care that is expected from the lawyer is that of a reasonable professional. In case the court considers that but for the negligence of the lawyer, the course of action would not have chosen by the client, then it is easy for the court to apply professional negligence to the situation, provided that there is a nexus between the action and the harm to the client.

A solicitor has fiduciary duty to the client and he may be liable for breach of fiduciary duty to the client if he breaches his trust, as was held in Hilton v Barker Booth and Eastwood, where the court held that the solicitor who breached the trust and confidence of the client was in breach of fiduciary duty. The important point is that if there is causation, that is, there is a breach of duty by the solicitor and such breach leads to a harm to the client, then there is a case of professional negligence against the solicitor as laid down in Clark v. Wrigleys Solicitors LLP. Mistake of law while advising clients, or ignorance of latest developments in laws can also lead to professional negligence.

Not only is the conduct of J Simmons and Co open to the claims in professional negligence, there is also a breach of regulatory practices on their part, which may expose them to possible action under the Legal Services Act 2007, which provides ethical standards and professional principles. As per these standards, lawyers are expected to adhere to professional principles. Two of these principles are that lawyers must maintain proper standards of work and act in the best interests of their clients. Solicitors are also bound to follow the code of conduct in the Solicitors Regulation Authority (SRA) Code of Conduct. The solicitors that fail to follow the appropriate code of conduct as provided in the Code of Conduct, are exposed to legal action by their clients are through the Legal Ombudsman under the Act. The SRA Code of Conduct contains mandatory principles, including the principles related to acting in the best interest of the client, providing a proper standard of service to the clients, and protection of the money or assets of the client.

All of these standards are breached by J Simmons and Co, as they have failed to act in the best interests of the client, and provide proper service, which has resulted in pecuniary losses for the clients. Therefore, Ben and Ella can take legal action against the solicitors.

In Bolkiah v KPMG, the court held that the no conflict rule is the part of the legal regulation of lawyers. The case of Hilton v Barker Booth and Eastwood, may be cited here as the relevant authority. In this case, the defendant solicitors concealed their conflict of interest which arose from their acting for both the purchaser as well as the developer of a property. The purchaser had a criminal background, which fact was known by the solicitors but concealed from the other client. The solicitors also had a personal interest in the matter, having loaned the purchaser with a significant sum of money. The House of Lords held the defendant solicitors in breach of their professional duty. The House of Lords also cited Moody v Cox, in which case the court had held that a solicitor putting himself in a position of having two irreconcilable duties, is at fault. SRA Handbook, Chapter 3 provides that a solicitor should not act where there is a conflict or a significant risk of conflict between the solicitor and the client. This is called own interest conflict. Moreover, the SRA Handbook provides that the solicitor shall have acted in a situation of conflict of interest if he has advised the client to invest in a business where the solicitor has a personal interest. The BSB Handbook also notes that a lawyer must not act in a case where there is a possible conflict of interest between him and the client.

Applying the principles of the above mentioned authorities to the present case scenario, it may be noted that James recommended that Amelia and Harry raise mortgage through Peter, a mortgage broker, who was a friend of James. Moreover, James also received a commission from Peter for recommendation of clients to his firm. Conflict of interest also arose from the fact that French Villas UK Ltd, were also partners in J Simmons and Co. None of these facts were revealed to the clients, that is, Amelia and Harry. There is a clear breach of professional duties as per the principles laid down in Hilton v Barker Booth and Eastwood.

Moreover, Amelia and Harry were advised by J Simmons and Co, that they had acted in connection with a number of transactions in the area earlier and such properties had increased in value since their purchase. This seems to be a false statement by James. The Misrepresentation Act 1962 is applicable in this situation. Section (2) (1) of the Act relate to nondisclosure of material or important facts and if it is negligent, it is a tort of negligent misrepresentation and if fraudulently, it is a tort of deceit. The solicitor is liable in tort for negligent act or misstatement. In this case, J Simmons and Co misrepresented the situation fraudulently and it may come under tort of deceit.

Based on the law relating to conflict of interest and professional conduct, Amelia and Harry can take action against J Simmons and Co for professional negligence. Moreover, the Misrepresentation Act is also applicable here and the solicitor may be liable for negligent misrepresentation.

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Conclusion

The clients can approach the Legal Ombudsman, which has jurisdiction over solicitors under the Courts and Legal Services Act 1990. Clients can approach the Ombudsman as complainants in case of a professional misconduct. The Solicitors Disciplinary Tribunal can be approached under an application for breach of professional conduct. The clients can seek compensation for wasted expenditure as damages from Simmons and Co, which can include purchase price, , bank interest, any travel expenses and conveyancing costs. The clients can also seek damages for any additional costs that they may incur in the litigation or legal process against the firm.

To finally conclude, Ben and Ella, and Amelia and Harry, can file an application to the Legal Ombudsman for professional misconduct and also file a case for professional negligence. The authorities indicate that J Simmons and Co has breached their duty of care.

Bibliography
Table of Cases

  • BPE Solicitors v Hughes-Holland (in substitution for Gabriel) [2017] UKSC 21.
  • Bolkiah v KPMG (1999) 2 ACC 222
  • Clack v Wrigleys Solicitors LLP [2013] EWHC 413 (Ch).
  • Copeland v Smith [2001] 1 WLR 371.
  • Dean v Allin Watts (A Firm) [2001] Lloyd’s Rep PN 605
  • Hayes v James and Charles Dodd (a firm) [1990] 2 All ER 815 (CA).
  • Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
  • Herrmann v Withers LLP [2012] EWHC 1492 (Ch).
  • Hilton v Barker Booth and Eastwood [2005] 1 All ER 651.
  • Midland Bank v Hett Stubbs Kemp [1979] Ch 384. Moody v Cox [1917] 2 Ch 71
  • Books

  • Herring J, Legal Ethics (Oxford University Press 2017). Boon A, Lawyers Ethics and Professional Responsibility (Bloomsbury 2015).

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