pnBlawg

the professional negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Crystal ball gazing: how does a judge assess loss of chance?

You can prove that a past event has happened but you cannot prove that a future event will happen. When the actions of a third party are relevant all that can be done is to evaluate the chance of that event happening. So when a claimant has proved as a matter of causation a real or substantial chance rather than a speculative chance of an event or events happening how does a court evaluate that loss of chance? In Joyce v Bowman Law Ltd [2010] EWHC 251 (Ch) J bought a property which was advertised with an option for the buyer to purchase the lower end of the garden if the seller’s application for planning permission was unsuccessful. J was keen to develop the land. He instructed B to act for him. Unfortunately the contract for sale contained a seller’s option, not a buyer’s option. B admitted negligence. J claimed loss of profit of £400,000: he would have developed the property and the additional land by building a large house. J argued that all the uncertainties concerning negotiating an option in the proper form, funding the redevelopment and obtaining planning permission should be reflected in a single percentage of 75%. He would recover damages of £300,000 on this basis. B argued that none of the consequential losses were recoverable as a matter of law, either because they were not within the scope of B’s duty of care, were not caused by the negligence or were too remote. B also argued that J had failed to mitigate his loss by building a smaller new house. It was held that J could only recover damages for his loss of profit if he could bring himself within the second limb of Hadley v Baxendale by showing that B had knowledge of the special circumstances which were liable to cause more loss. The judge found that B knew of J’s intention to make a profit from developing the property. It did not matter that B was not aware of the precise scale of the intended development; the knowledge was sufficient to give B knowledge of special circumstances outside the "ordinary course of things" of such a kind that a breach in those special circumstances would be liable to cause J loss. How did Mr Justice Vos assess the loss of chance? He found that the chances of: J being granted a suitably watertight buyer’s option were 85%; J exercising his option 100%; J being able to obtain planning permission or his plans 40%; and J obtaining funding for the development 85%. Multiplying these percentages gives a figure of 29%. On a finding of a loss of profit of £130,000 the Judge awarded damages of £37,700. In Tom Hoskins plc v EMW Law [2010] EWHC 479 (Ch) Mr Justice Floyd approached the task a little differently. This was a professional negligence claim against solicitors handling the sale of a portfolio of public houses and a brewery. The main issue was that E’s negligence caused T to complete transactions late and on relatively unfavourable terms. Although there were multiple contingencies (agreement to the terms, attempts to re-negotiate or extend the date for completion) the Judge considered it was wrong to apply a mechanistic approach of multiplying percentage by percentage. By way of illustration if the Judge had thought there was a 20% chance of the purchaser agreeing to provide a director’s guarantee and an 80% chance of completion occurring at the end of October that would produce a loss of chance of 16%. However this did not reflect the true chances of the deal being done. The Judge evaluated the overall chances of completion by the end of October at 50%. In Harding Homes v Bircham Dyson Bell [2015] EWHC 3329 (Ch) B acted for H in connection with a bank loan to finance a residential development. B included an all-monies clause by mistake in the guarantee. When H defaulted the bank demanded that the shareholders pay the sum due of £5.9m. Counsel for B argued that as the contingencies were truly independent so that the chances of one contingency happening were unrelated to the chances of the other contingencies happening the court should apply a mechanistic approach. Mrs Justice Proudman cited the decision in Tom Hoskins and decided that she should look at the chances of various contingencies happening in the round, not by applying percentage upon percentage. Although in the end it was irrelevant because the Judge found that causation was not made out and only nominal damages were awarded.   A mechanistic approach seems attractive: sequential logical steps with a percentage at each step then calculate the product of those figures. However it can skew the loss of chance and lead to a figure that does not truly reflect the overall chance that without the negligence the claimant would have negotiated or achieved a better outcome. After all damages are supposed to be compensatory in nature.

Is an extension to the SAAMCO principle on the horizon?

Background Property valuation is seldom an exact science; it involves the consideration of both present factors and future contingencies.  With the property crashes of the last two decades came a wealth of litigation considering both the scope of the duty of care owed by valuers to lenders and the extent to which losses caused by negligent valuations are recoverable. One such case which those in the professional negligence field will be familiar is South Australian Asset Management Corporation v. York Montague Ltd [1996] UKHL 10. The House of Lords held, inter alia, that valuers who provide negligent valuations are only liable for the loss caused by the negligent information itself and not for any extraneous events (in the legal sphere this became known as the SAAMCO principle). Subsequent cases sought to distinguish its application, particularly where the duty was to advise rather than to inform and, earlier this month, the principle was again brought to the fore in an interesting judgment delivered in Edward Astle & Ors v CBRE Ltd and others [2015] EWHC 3189 (Ch). The case involved a Government scheme which consisted of both a trust and a partnership. The trust held freehold property and the partnership had an interest in the acquisition and development of five development sites. The Royal Bank of Scotland (“RBS”) sought expert valuations for loan security purposes and approached the Defendant companies (ERL and CBRE) in separate capacities. CBRE advised on the value of the units and freehold property. The units and loan notes were then procured and issued by ERL (the owner of the partnership and trustee company) in an information memorandum (“IM”). The IM contained a section entitled “Investment Overview” and sought to raise £37, 500,000, £25, 775, 000 of which was subsequently invested by the Claimants. Unfortunately, there was a collapse in commercial property values in 2008 and a desktop valuation carried out by CBRE noted a sharp decline in the aggregate value of the freehold and units. As such, the development centres were cancelled in 2010 and the freehold was sold. This meant that the partnership defaulted on its debt and the combined value of the properties was such that the Claimants lost all that they had invested. The Claimants brought a claim against the Defendants alleging that the valuations had been materially overstated and that their losses were attributable to the alleged overvaluation in the IM. The Defendant applied for summary judgment against the Claimants relying on the SAAMCO principle, namely that this was a case of duty to inform and therefore a claim for losses unconnected with the alleged overvaluation could not be pursued. Judgment Judge William Tower QC, sitting as High Court judge, delivered judgment on 5 November 2015. Despite accepting that the duty of the investors in this case was a duty to inform rather than to advise he nonetheless went on to hold that the Claimant had a real prospect of establishing that the loss they had suffered was attributable, at least in part, to the alleged inadequacies in the IM. In summary, the arguments presented on both sides were as follows. The Defendant argued that even if the IM has been entirely accurate, the Claimants would still have lost the totality of their investments because the cause of the loss was only attributable to the following events: commercial property values having collapsed, the project having been abandoned and the partnership refinancing having failed. The Claimants argued that whilst the SAAMCO principle applied in relation to the claims against CBRE, it did not apply to the claim against ERL.  The reason purported was that the SAAMCO case could be distinguished on its facts based on the following. Firstly, that the scope of the duty of care was different. There was no equivalence between ERL’s role and that of a valuer, SAAMCO related to a standard mortgage lender claiming against a negligent valuer whereas, in the present case, investors had acquired units or loan notes on the basis of a prospectus. In this sense ERL was not providing dispassionate objective advice as a valuer but rather it was the promoter of both a valuation and more nuanced information relating to commercial prospects. As such, ERL was also the recipient of a wide range of other benefits which were far removed from a standard fee for the provision of valuation service type scenario. Secondly, the starting point for discerning loss was different. Unlike SAAMCO, it was submitted that in the present case the court was not required to carry out a speculative analysis of what the valuation would have been had the information been accurate. Instead, it was required to assess the damages at the amount advanced less the amount recovered. The Claimant’s reasoning was that they had suffered an immediate measurable loss at the time of their investment because the units and loan notes (the asset in which they had invested) were in fact worth less than they were represented to be and that since they recovered nothing they were entitled to the full amount advanced.   Judge Tower reviewed the relevant authorities and asserted that the exercise which the court is required to carry out when considering these cases is a two-stage process: Firstly, the court must ascertain the basic loss i.e what loss did in fact occur. Secondly, the court is required to assess the maximum amount of the loss capable of falling within the duty of care, which it does by identifying the consequences which are attributable to that which made the act wrongful. Siding with the Claimants, Judge Tower agreed that it was capable of being argued at trial that the Claimants made an investment which was worthless and which they would not have made if they had been informed as to the true value of the investment. Following this, even though ERL had no duty to advise, as an information-provider on an investment rather than a lending decision, it was arguable that ERL knew that the information would be used by the Claimants and their own advisers to decide on the viability of the transaction.  Therefore the maximum loss was, at least in part, attributable to the alleged overvaluation. Comment Ultimately, this was a summary judgment application. The judge was not permitted to have a mini-trial of the issues and the threshold the Claimant had to surmount to prove that the case had a real prospect of success was a low one. It is also important to note that the judge’s decision was caveated. On the evidence before him Judge Tower decided it was quite likely that the Claimants would not be able to prove at trial that an overvaluation caused anything like as much loss as much that alleged and that a trial judge may find that his two-stage formulation is not appropriate. For all these reasons, practitioners cannot infer too much at this stage as to a possible extension of the SAAMCO principle. Nevertheless, the judgment does foreshadow a trial on the substantive issues which will raise poignant questions as to the scope of SAAMCO and one which will have potentially wide-ranging implications for practitioners (as well as valuers/investors). Most notably the door may be opened in similar cases to a third category of duty which carries a different measure of loss, one that sits between the duty to inform and the duty to advise where the tortfeasor is aware than the information will be used to decide the viability of a transactions. Looking ahead, for practitioners this could mean that the SAAMCO principle will no longer be a ‘carte blanche’ in valuation cases where the duty to inform arises and that investment contracts will need to be subjected to meticulous scrutiny. For those practising in this field, the forthcoming judgment will certainly be one to watch.    

Will the introduction of adjudication in Professional Negligence cases have the same impact as the introduction of a similar scheme in the Construction Court?

On 1 February 2015 a voluntary pilot scheme for the adjudication of solicitors’ professional negligence claims was launched. Mr Justice Ramsey was to consider three test cases (with a quantum value of £100,000 or less) with feedback on those cases due to be provided by June 2015. It is now nearly November 2015, and not much has been heard: the latest update is that only one pilot case has been adjudicated upon, with the Adjudicator being 1 Chancery Lane’s Ivor Collett. There are presently no other pilot cases in train, but all signs point to determination that other pilot cases should be heard in the next few months. However, it was clear from the excitement provoked by the announcement of the scheme that there was an appetite within the industry for alternative means of dispute resolution for solicitor’s negligence claims. The confidentiality of adjudication proceedings are of great interest, particularly to defendant solicitor’s firms, for whom adverse publicity can be very problematic. No other legal sector has been as affected by the introduction of adjudication as the construction sector. Adjudication has been used as a form of dispute resolution for construction claims arising during or after completion of projects for many years pursuant to the statutory right to adjudicate under the Housing Grants, Construction and Regeneration Act 1996 (which was later amended by the Local Democracy, Economic Development and Construction Act 2009). Key advantages of adjudication (as applicable to professional negligence claims) are:  1. It is possible to obtain a reasoned judgment enforceable in Court for much lower cost than using Court proceedings. 2. The scheme can work with the pre action protocol claim and response letters as submissions from the parties. 3. The PNBA have appointed a panel of 5 adjudicators for the pilot all with many years of experience in this type of claim on standard terms of business and cost. 4. The scheme itself is designed as a precedent which can be adapted by agreement for individual cases – adaptations agreed will be useful in assessing the feedback. 5. Interlocutory points/preliminary issues could be adjudicated if a barrier to other forms of ADR like mediation and/or as a cheaper and quicker alternative to Court hearings. 6. The meeting and process could be agreed as similar to mediations at similar cost. Whilst the decision of an adjudicator is only temporarily binding, as Mr Justice Ramsey (a veteran of the introduction and expansion of the adjudication in construction dispute scheme) comments in his introduction, experience has shown that parties do not usually seek a final determination through the courts and accept the decision as a means of settling the dispute. The scheme is run along similar lines to that for construction disputes though there are some differences and, in particular, parties can adapt two aspects. The first relates to the binding nature of the decision and the second concerns costs:1. The parties can agree that the decision will be temporarily binding until it is finally determined (by litigation, arbitration or agreement) or they can agree that it will be finally binding. 2. If the parties so choose, the adjudicator will have power direct one party to pay the other’s reasonable costs and if appropriate can be given directions to enable him/her to determine those costs subject to a cap of £5,000. The parties can also agree for the adjudicator to have no such power and each party would therefore bear their own costs.Related disputes can be referred to adjudication together and a decision from the adjudicator is to be provided within 56 days of his or her appointment (which can be extended by agreement). The 56 day deadline is also applicable to the time between an adjudication being agreed upon as the way forward, as opposed to the rather more rigid 28 days in construction adjudications. It is hoped that the extra flexibility will make the scheme easier to prepare for. The pilot is not a statutory scheme. The Ministry of Justice will be involved in further discussions once the feedback has been analysed which will consider whether adjudication should be included as part of civil procedure in professional negligence claims. It may therefore be some time before the report into the pilot scheme is finalised. If the results are positive, and the scheme is expanded, it will be interesting to see if the impact on the professional negligence sector is as striking as in construction (where the number of construction disputes litigated in the Construction Court has dropped to 22% of what it was in 1995, when the scheme was introduced). My view is that while adjudication will undoubtedly assist the swift and ready resolution of some lower-value solicitor’s negligence cases, the very fact of those limitations will ensure that the impact is not as fulsome as has been noted in the construction sector. Until the result of the pilot scheme are released, the sector remains in the dark. 

Schubert Murphy v The Law Society

In Schubert Murphy v The Law Society [2015] P.N.L.R. 15 (QBD), Mitting J refused to strike out a claim by solicitors who alleged that it had suffered loss during a conveyancing transaction as a result of relying upon misinformation on the Law Society’s "Find a Solicitor" website. Someone calling themselves John Dobbs submitted and obtained a practising certificate to operate as a sole practitioner under the trading name of Acorn Solicitors. A Mr Khristofi decided to buy a house and instructed Schubert Murphy. The vendor was represented by Acorn Solicitors. Schubert Murphy checked the Solicitors Regulation Authority (SRA) and noted Acorn Solicitors were regulated. The Law Society’s practice note on mortgage fraud (dated 15 April 2009) urged solicitors as a matter of good practice to check their directory "Find a Solicitor" or the directory of Licensed Conveyancers if they were dealing with a firm they were unfamiliar with. During the conveyancing Acorn Solicitors gave the standard undertaking to discharge the existing mortgage out of the purchase monies paid by Mr Khristofi. Mr Khristofi moved into the house to discover the £735,000 purchase price had not been used to discharge the mortgage; Acorn Solicitors were a sham and the undertaking worthless. Mr Khristofi faced eviction proceedings by Lloyds Bank who held a first charge over the property. Mr Khristofi brought proceedings against Schubert Murphy (for negligence) which was settled. Schubert Murphy then brought proceedings against the Law Society for breach of statutory duty and/or negligent misstatement. The Law Society sought to strike out the claim on the basis it did not owe Schubert Murphy a duty of care. Mitting J refused to strike out the claim and held the matter should go to trial. The existence or not of a duty of care vested in the SRA in respect of its duties under ss. 10(1) and 10A of the Solicitors Act 1971 depended on an analysis of general factors and specific factors. Having regard to issues concerning the protection of the public a strike out was not appropriate as in theory if the Law Society was correct it called into question the security of current conveyancing practice. Furthermore that could be a factor in recognising the existence of a duty of care which coincided with the Law Society’s statutory duties when considering applications for the entry onto the Roll of Solicitors and their registration. This was because the Law Society, by encouraging members of the public to rely on its published information about who is a solicitor could be shocked to discover they had no route for recompense against a representative and regulatory body that held out a person as a solicitor on its website when in fact they were not. It is not clear from the judgment whether the Law Society’s website for its "Find a Solicitor" contained an appropriately worded disclaimer in 2010 when the fraudulent transaction occurred. It does now and includes the wording "Find a Solicitor is not intended to be the way in which the Law Society fulfils its statutory duties under the Solicitors Act 1974 to keep an official register of all solicitors available for inspection by the public" and goes on to advise viewers to inspect the official register. The Law Society contended that a body in its position and exercising a statutory duty owed no duty of care to those who may be injured economically by carelessness (relying on Yuen Kun-Yeu v Attorney General of Hong Kong [1988] A.C. 175). Mitten J held reliance on the case noted above was of little assistance as it did not establish that in no circumstances could a regulator not be responsible for economic loss. Further it was a not case where the Law Society made a representation or failed to exercise due care in an assessment of honesty or competence of "John Dobs", but instead it just entered his name on the Roll and register him as entitled to practise when if they had exercised proper care they would not have done so. Mitten J also held that in negligence claims generally there was no requirement that the act of carelessness giving rise to the claim must coincide temporally with the occurrence of harm. Furthermore in a representation case it did not matter the alleged carelessness happened at a time when the person to whom the representation was made was not personally in the contemplation of the defendant. Mitten J was concerned about the possible impact on conveyancing practise as in cases where solicitors are involved negligence can be rectified by a payment from the Solicitors Compensation Fund. However counsel for the Law Society submitted only where a solicitor gives an undertaking that fails will compensation be paid as there is no remit or obligation to make payments for failed undertakings given by people posing as a solicitor. So how does a member of the public or a solicitor obtain independent verification of the information on the "Find a Solicitor" website? The official register could be inspected and the Law Society telephoned. However the SRA will not necessarily release information about a person’s route to entry on the Roll on the basis of data protection principles. Should such a body like the Law Society be allowed to comprehensively disclaim responsibility for information when it urges the public to check the information it publishes and urges solicitors, as a matter of good practice, to also check? J Mitting gave judgment on 17 December 2014-does anyone know what is happening with this case?                

Mortgage fraud - section 61 Trustee Act 1925 revisited

  The case of Santander UK Plc v R A Legal Solicitors (a firm) [2013] EWHC 1380 (QB) contains a timely review of “mortgage fraud” cases and of the circumstances in which a solicitor might successfully obtain relief under section 61 Trustee Act 1925 (see further Karen Shuman’s posting “Section 61 Trustee Act 1925 and the Three Wise Men”). The brief facts were as follows: the defendant solicitors (“RA”) acted for V, the purchaser and V’s lender (“Abbey”), which provided V with a loan of £150,000. RA dealt with Sovereign Chambers LLP (“Sovereign”), which fraudulently presented itself as acting for S, the registered owner of the property. S had no intention of selling the property and was ignorant of Sovereign’s fraud. As a result of Sovereign’s deception, RA paid over the purchase monies (including £150,000 loan) to Sovereign in the belief that it was completing the sale. Completion did not take place and Abbey did not receive a valid charge over the property. The monies were never recovered. As part of its claim, Abbey sued RA for breach of trust. Applying Lloyds TSB Bank Plc v Markandan & Uddin [2012] EWCA Civ 65, and Nationwide Building Society v Davisons Solicitors [2012] EWCA Civ 1626, the Judge held that RA had no authority to release the trust funds in the circumstances in which it did. Therefore by paying away the trust property (i.e. the advance) without receiving genuine documents to complete the transaction, the solicitors were in breach of trust. In deciding that RA was entitled to relief under section 61 Trustee Act, the Judge decided that the correct approach was similar to that adopted in cases concerning relief under section 727(a) Companies Act 1985, such as Barings Plc v Coopers v Lybrand (No 7) [2003] EWHC 1319. Thus a person may have acted “reasonably” for the purposes of the statutory provision even though he/she acted negligently if their negligence was “technical and minor in character” and not “pervasive and compelling”. The Judge concluded that RA had acted reasonably: none of the criticisms made of the solicitors were sufficiently serious or involved such a departure from ordinary and proper standards as to cut them off from the court’s discretion to relieve them of liability. The Judge also observed that the law generally (although not invariably) leant towards confining the responsibility of professional people to a duty to take reasonable care and in particular, it did not readily impose on them responsibility for loss resulting from the fraud of others. This case provides further analysis as to how a court might exercise its discretion under section 61 Trustee Act and it illustrates the point that a solicitor guilty of negligence that was “technical and minor in nature” might still obtain relief.    

An expert too far .....

The Commercial Court gave short shrift to parties calling insurance experts to opine on meaning of a widely used construction insurance policy. The case of Aspen Insurance UK Limited v Adana Construction Limited [2013] EWHC 1568 (Comm) concerned cross claims for declarations as to whether the claimant insurer was contractually bound to cover the defendant contractor under the terms of a combined liability insurance policy. The defendant was joined in proceedings for damages for personal injury sustained by a crane driver following the collapse of some foundation piles. One issue of note in this case was the way the trial judge treated the issue of insurance experts. The Claimant was given permission at the CMC to call expert evidence from an Insurance expert with wide experience of the combined contractors' liability insurance policy placed in the Lloyd's Market and of the market in which such insurance is placed. The expert was to address the contention that there was a conventional understanding as to the division between public liability and product liability, with the latter cover 'kicking in' exclusively once the Defendant's works had been handed over. According to the Claimant such conventional understanding formed part of the factual matrix of the policy and it was said that that understanding was of assistance in construing the terms of the contract. The judge at the CMC gave permission but left the issue of the admissibility of the expert evidence to the trial judge. At the start of the trial the judge expressed reservations about the relevance and admissibility of the expert evidence but agreed to hear it. The Claimant duly called their expert. The Defendant called evidence in rebuttal. In his judgement Mackie J did not mince his words when expressing his views on the use of such experts: "I expressed reservations about the relevance and admissibility of this evidence at the outset but agreed to hear it. In one sense the Claimant got what it deserved, first responsive evidence from the Defendant even more inadmissible than its own and secondly emergence of a recent example of the Claimant having acted inconsistently with its alleged market understanding .... [the experts'] evidence was irrelevant". The experts had given evidence that included admitting that it was from their interpretation of the contract that they drew their views. On issues of contractual interpretation parties would be well advised before attempting to call expert evidence as to industry use or practice relating to those terms, to conduct a proper analysis of the reason that evidence is necessary. If the evidence simply corroborates one party's understanding of the interpretation then the evidence is likely to be inadmissible or irrelevant. However if a party could demonstrate that industry knowledge and practice informed the contractual intentions of both parties in relation to the disputed provisions then it may be appropriate to request permission for such experts.

Testamentary Capacity and Solicitor Negligence

The conclusion of a recent Study undertaken by Robert Hunter, heads of trusts litigation at Herbert Smith and Dr Claire Royston, a consultant psychiatrist and medical director of Four Seasons Health Care, should serve as a stark warning for practitioners in this area. Its conclusion has been that it has found solicitors lacking when making this judgment as to the potential testator’s capacity. The Study took place over three years, looked at the responses of some 91 solicitors and 92 consultant psychiatrists to two films showing an elderly man visiting his solicitor to give instructions for the drawing up of a new will. The subject of the film was portrayed as a formerly successful business man, who disclosed he had suffered a stroke. He was shown to have “excessive function deficits covered by a social veneer”. The films converged as to good and bad interview techniques, and afterward the participants were asked questions concerning essentially whether than man in the film had capacity.  The presence of such a disorder could potentially have meant that the man lacked testamentary capacity. It was thus considered that it was crucial for the participants to correctly identify this fact and give it consideration. The conclusions of the Study are potentially concerning for the legal profession:  (a) from the film showing the bad interviewing techniques:  (i) only 2% of the solicitors recognised that the client had a mental disorder, (compared to 73% of the psychiatrists); and  (ii) only 33% of the solicitors concluded that the client potentially lacked testamentary capacity; and  (b) however, from the film showing the good interviewing techniques:  (i) 60% of the solicitors, recognised that the man had a mental disorder (as compared to 84% of the psychiatrists); and  (ii) 90% of the solicitors came to the correct conclusion as to the potential lack of capacity.  Dr Royston has been widely quoted in the legal press as saying “These results clearly demonstrate the difficulties faced by solicitors in forming a judgment about the mental capacity of certain clients that may arise from poor interview techniques, for example using leading or closed questions…This is a sensitive subject but it is important that improvements are made in order to protect the rights of vulnerable clients.” Mr Hunter is reported as suggesting that “The study confirms what many lawyers specialising in probate litigation have long suspected. It is too easy for solicitors to confuse social graces with mental ability… There is an unacceptable level of risk that some solicitors are letting the public down because they do not realise that inappropriate interviewing techniques can conceal their client’s lack of mental capacity. In my experience when solicitors do become aware of a capacity issue, basic safeguards requiring the seeking of medical opinion are frequently disregarded without good reason.” The authors of the Study propose reforms, including essentially greater regulation of the solicitors profession, increased training obligations and the enshrining of the adherence to the “Golden Rule” with professional sanctions to be imposed for not doing so.  But solicitors have long had a professional obligation to consider carefully this issue.Solicitors have long had guidance on the correct means of judging the testamentary of their clients. Under the Solicitors Code of Conduct 2007 the starting point is in the Guidance to Rule 2, paragraph 6(1)(a)(3)(iii): "where you may be dealing with a client who does not have mental capacity as defined in the Mental Capacity Act 2005 … special circumstances apply. You need to bear in mind that the question of capacity relates to the particular decision that needs to be made, and it is, for instance, entirely possible for someone to lack capacity to make certain decisions but have the capacity to instruct a solicitor on other matters. To ensure that you comply with the law you need to have regard to the provisions of that Act and its accompanying Code.” In this new world of an ‘outcomes focused approach’ the SRA Handbook ed 23.12.11 IB(1.6) obliges a solicitor: “in taking instructions and during the course of the retainer, having proper regard to your client's mental capacity or other vulnerability, such as incapacity or duress” Potentially this limited Study shows there may be an issue in the profession as to assessing capacity. The most obvious conclusion of the Study is that asking the correct questions and correctly interpreting the answers according to the correct tests in law is of paramount importance. These are not necessarily matters which can or should be resolved with regulation (although this may generate useful publicity), but most obviously resolvable by better training. If indeed this is down to training or a lack of understanding of the law, such an issue can and should be easily remedied by a contentious practitioner and/or his or her firm. Any practitioner who is not sufficiently competent in this area, but continues to assess the capacity of those wishing to make a will, shall increasingly do so at his or her peril. The end of the recession is sadly not in sight. People will continue to increasingly exhibit avariciousness in hard times, particularly if family property is involved (such as grandma's proverbial council house in Chelsea, bought in the 1980s for £40,000 and today worth £2M) . The practitioner who does not fully discharge his or her contractual and tortious duties owed to testators, (their estates) and their beneficiaries will face potentially far more serious implications than the “professional sanctions” suggested by the authors of the Study, in the form of what could well amount to a very significant professional negligence claim.