Article written by Helen Evans, Thomas Ogden and Marie-Claire O’Kane on 4th January 2018.

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What loss?

14. Another twenty year old decision, namely that of the House of Lords in Nykredit v Edward Erdman
Group Ltd [1991] 1 WLR 1627, received reaffirmation in 2017. Nykredit is authority for the proposition
that in a case involving a negligent valuation where but for a defendant’s negligence the lender would
not have lent, when calculating loss the court has to compare what the claimant’s position would have
been if the defendant had fulfilled his duty with the claimant’s actual position.

CIVIL LIABILITY OF LAWYERS FOR DEFICIENCY IN SERVICES: A CRITICAL ANALYSIS

Author(s): Venugopal B.S.

Source: Journal of the Indian Law Institute, Vol. 53, No. 2 (APRIL-JUNE 2011), pp. 275-309

Published by: Indian Law Institute

Lawyers like other professionals invite liability for deficiency in service. Such liability may arise under
contract law, tort law or the Consumer Protection Act, 1986. They owe a primary duty to assist the
courts in the administration of justice, which prevails over their duty of care towards the clients. Liability
of lawyers under contract law arises for breach of contractual obligations either express or implied.
Under tort law, the liability arises for failure to exercise reasonable care and skill in rendition of their
professional services. The standard of care that is expected of a lawyer is that of a reasonably
competent lawyer. An option is given to the client either to invoke the jurisdiction of civil courts under
contract law, tort law or the consumer forum under the Consumer Protection Act.

In Fletcher & Son v. Jubb <& Helliml29 a lawyer failed to initiate an action for personal injury against the
local authority, within the period of limitation as contemplated under the Public Authorities Act, 1893.
In effect, the action was dismissed as barred by limitation. The lawyer was held guilty of negligence and
the client was allowed to re

The tortious liability of a lawyer for deficiency in service arises independent of a contract.26 He is bound
to exercise reasonable care and skill, which is expected from a reasonably competent lawyer.27 It is
neither the highest nor the lowest degree of the care. It cannot be denied that he should have
knowledge of law. As law is an ocean, it is humanly impossible for any lawyer irrespective of his
experience to know all the laws. In this regard, in Mantriou v. Jefferiesy2S the court observed: No
attorney is bound to know all the law. God forbid that it should be imagined that an attorney or a
counsel or even a judge is bound to know all the laws.
But he is bound to know the substantive laws, statutes and procedural laws pertaining to his sphere of
practice, which a reasonably competent lawyer ought to have known failing which he invites liability for
negligence.

Failure to inform important matters coming to his knowledge: A lawyer in the course of representing a
client may collect a bulk of information. All these matters may not be relevant for the purpose of the
retainer. He must ascertain the relevant matter and bring it to the notice of his client. In Lake v. Bushby
,37 the lawyer was acting on behalf of a vendor and purchaser of a property. It came to his knowledge
that there was no planning permission for the bungalow, which was constructed on that property. There
was the risk of the planning authority pulling down that building at any time. It was held that omission
on the part of the lawyer to divulge the information to the purchaser amounted to negligence.