The terms for the sale of shares in a company had been agreed between the parties; heads of agreement had been drawn up, and solicitors instructed. In due course, one side’s solicitor put forward a draft that did not accord to what had previously been agreed (or was in the heads of agreement); the other side corrected that error, even though it could have been to their client’s advantage. In due course the transaction was completed, but a few years later one of the solicitors was sued for having failed to take advantage of the mistake made by the other side. As it turned out, that mistaken approach would have been significantly to the client’s advantage. The question then arose as to whether or not there had been a breach of duty of care by the solicitor.

The court decided there had not been a breach. It pointed out that if the solicitors had gone ahead with that sharp practice then there might possibly have been a claim for rectification. On the other hand, Rule 4 does require a solicitor to disclose to a client all information which is material to the client’s matter, but one can only assume that in this case the court decided it was not sufficiently ‘material’. The outcome, therefore, is that there was no duty of care – and you do not have to advise the client of unintended mistakes made by the other side. Tamlura v CMS Cameron McKenna [2009] EWHC 538 (Ch).