20 April 2017 by

Professional Negligence risk for solicitors who fail to advise on “clause interpretation”

The Court of Appeal has provided a useful reminder that a solicitor must advise a client that there could be an alternative interpretation to a clause in a document that could lead to a dispute.


Mr Balogun (“the Claimant”) instructed Boyes Sutton & Perry (“the Defendant) a firm of solicitors, in relation to the acquisition of a lease of a commercial unit. After the completion of the lease, a dispute arose between the Claimant and the head landlord regarding the Claimant’s proposed fit-out works at the property and the wording of the Lease.

The Claimant sued the Defendant for damages arising out of professional negligence/ breach of contract. He argued that the Defendant failed to advise him to seek amendments to the lease to protect against wording in the lease that was open to “alternative interpretation”.

High Court Decision

At first instance, the High Court ruled that the Claimant had failed to prove any breach by the Defendant by not advising of an alternative interpretation. The High Court stated that there was no clear risk factor and therefore, no obligation on the Defendant to advise the Claimant of an alternative interpretation of the wording of the lease.

Court of Appeal Decision

The Claimant appealed the High Court decision. The Court of Appeal held that the Defendant had correctly interpreted the lease, however, the Defendant failed to warn the Claimant that there was a risk of an alternative interpretation. The Defendant was therefore in breach of the duty of care owed to the Claimant. Unfortunately for the Claimant, the court ruled the Claimant had suffered no loss as a result of the breach of duty of care.

Whilst the facts of every case will play a major part in determining whether a solicitor needs to warn a client of the risk that a court could interpret the wording of a document differently, this case provides a cautionary reminder that solicitors should consider the wording of documents in sufficient detail in order to advise their clients that there is a risk of an alternative interpretation.

If you have any questions regarding the above article or wish to believe you may have a professional negligence claim, please contact one of our solicitors in the Professional Negligence team here.

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