The emergence of solicitors’ tortious liability and the award of damages

Abstract

Analyses the emergence of tortious liability on solicitors and the damages awarded against them for negligence in preparing wills, ie testamentary disposition, when this causes losses to beneficiaries recognisable in law; it is no longer the case that actions by clients against solicitors are always for breach of contract. Traces how negligence has been established as an independent tort, and shows how absence of privity does not debar a claim. Discusses the landmark case of Ross v Caunters, which showed that liability could be to a third party, ie the beneficiary of a will that was made void by solicitor negligence; discusses how the duty of care was ascertained in this and other cases. Outlines the control mechanisms that a third party has to prove before a court decides that a solicitor is liable: reliance on the solicitor, whether there is a causal link between negligence and loss, proximity and foreseeability; there is also the concept of fair, just and reasonable. Covers lastly the issues of unjust enrichment of unintended beneficiaries, professional indemnity insurance, social policy objectives for awarding damages, and the bounds of liability.

Citation

Hemraj, M.B. (2003), "The emergence of solicitors’ tortious liability and the award of damages", Journal of Financial Crime, Vol. 10 No. 4, pp. 316-330. https://doi.org/10.1108/13590790310808862