Importance of solicitors' duties to keep clients fully apprised of developments affecting their matter or claim:

In the recent decision in Mackenzie v Rosenblatt Solicitors (a firm) and another, Fancourt J dismissed a professional negligence claim against a defendant firm of solicitors arising out of advice they had given to the claimant in relation to a claim he had issued against his former employer and certain directors of the employer for unlawful means conspiracy. The decision provides a useful reminder of solicitors' contractual and common law duties to keep a client properly apprised of developments on a matter or claim and makes clear the need for claimants to demonstrate that, in the absence of any breach of duty, they would have behaved differently and avoided some or all of the alleged loss.

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Factual Background

Mr Mackenzie, the claimant, was the former chairman of his employer, the AA plc. The AA dismissed him for gross misconduct. Mr Mackenzie instructed Rosenblatt in August 2017 to advise him in relation to possible claims against the AA.

Rosenblatt's contractual retainer provided that it would review Mr Mackenzie's matter regularly and would advise him of any risks and circumstances of which the firm was aware, or which it considered reasonably foreseeable, that could affect the outcome of the matter. Rosenblatt also undertook to use appropriate skill and care in providing its services in accordance with its solicitors' professional obligations.

A claim for unlawful means conspiracy was issued in March 2018 against the AA, its directors and company secretary. The factual background underlying the claim was complex, but the crux of Mr Mackenzie's claim was the allegation that he had been dismissed unlawfully on the basis of an ulterior motive by the other directors, which was to reclaim (for their own purchase) shares that Mr Mackenzie had held under a management value participation scheme but was no longer entitled to as a "bad leaver" under the terms of that scheme. It was clear – and Rosenblatt made clear to Mr Mackenzie – that there was a lack of available evidence to support Mr Mackenzie's allegation. It was also clear that Mr Makenzie's primary objective was to bring claims for tactical reasons, to exert pressure on the AA to increase the likelihood of his being able to negotiate a favourable settlement.

On 13 June 2018, following a meeting with Mr Mackenzie, Rosenblatt wrote to him stating that his prospects of success were "less than 50%". Shortly thereafter Counsel provided preliminary advice to Rosenblatt that the conspiracy claim was at significant risk of strike out and had no merit. Rosenblatt told Mr Mackenzie that following discussion with Counsel, its inclination was to allow the defendants to proceed to issue strike out applications. Rosenblatt did not, however, tell Mr Mackenzie what Counsel's preliminary advice had been regarding the merits of the claim. The defendants issued strike out applications on 7 and 10 August 2018.

Following a final meeting with Rosenblatt and Counsel on 11 October 2018, Mr Mackenzie terminated Rosenblatt's instruction and instructed a different firm of solicitors. He then abandoned the conspiracy claim before the strike out hearing. Mr Mackenzie brought proceedings alleging negligence against Rosenblatt, on the basis that: (a) in the absence of a proper foundation for the conspiracy claim, Rosenblatt should have advised him that it could not properly plead such a claim on the basis of its professional conduct obligations and (b) if the claim was capable of being pleaded, Rosenblatt ought to have advised him that it was a weak claim.

Judgment

Of the claimants' fourteen allegations of negligence, four were ultimately made out. Fancourt J found that Rosenblatt should have advised Mr Mackenzie, before the conspiracy claim was issued, that it was a weak claim, about the ways in which it was weak, and also about how developments between the firm's initial advice and the date of issuance of the claim had affected Mr Mackenzie's original strategy. In failing to do so, the defendant firm had acted in breach of its express contractual duty to keep its client informed and fully apprised of circumstances affecting the outcome of the matter.

Fancourt J further found that Rosenblatt had acted negligently in not advising Mr Mackenzie that the claim was at risk of a strike out or summary judgment application and by failing to inform Mr Mackenzie of Counsel's provisional advice that there was a significant risk of the claim being struck out.

However, Mr Mackenzie, as the claimant, bore the burden of proof to establish (on the balance of probabilities) that he would have actually acted differently in the absence of the defendant's negligence, and if so, how. Mr Mackenzie was unable to successfully discharge that burden of proof. Fancourt J held that the Defendants' negligence had not caused Mr Mackenzie any loss, on the basis that it was more likely than not that Mr Mackenzie would not have acted differently, in any event.

Analysis

Although Mr Mackenzie's claim ultimately failed, the decision underscores the vital importance of solicitors fulfilling their contractual and common law duties to keep their clients fully informed and apprised of all relevant developments.

The decision also provides a useful reminder of the need for solicitors to ensure that clients are kept fully abreast of developments (however such developments arise, whether in the course of disclosure, correspondence, procedural steps, or otherwise) which affect, or could affect, the client's desired strategy or approach. This in turn requires solicitors to continually assess both the ramifications of developments on a particular matter for the client's objectives or strategy and to consider whether they might need to update their advice to the client accordingly.

Finally, the decision provides a prescient reminder of the importance of compliance with the new Practice Direction (PD 57AC) governing the preparation of witness evidence. In the Mackenzie case itself, Fancourt J noted that the witness statements had clearly been heavily edited and carefully crafted by the solicitors, not reflecting the styles of the individual witnesses and/or not corresponding with their level of knowledge and recall of the particular events when they gave evidence at trial. This compromised the credibility of, and weight given to, the witness evidence.

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