Legal Professional Negligence: Falcon v Makin & Kinsey Solicitors v Makin

On 10 March 2022 the Victorian Supreme Court of Appeal handed down its judgment in the matter of Falcon v Makin & Kinsey Solicitors v Makin, which dealt with legal professional negligence. The matter was an appeal against a decision by the Victorian Supreme Court, which found that the law firm Makin & Kinsey had not been negligent in its representation of Jack Falcon and had not caused him to lose the opportunity to claim damages against a defendant. The Court of Appeal ultimately confirmed that decision.

Falcon’s claim of legal professional negligence

Jack Falcon had been a client of Makin & Kinsey Solicitors. He had retained the firm in 2016 to pursue a claim of damages for breach of contract and negligence against an architect he had engaged in respect of a property development. Proceedings were initiated against the architect.

In 2018, while Falcon was overseas, the firm advised him by email that it had ceased acting for him. Another solicitor subsequently commenced acting, and the matter was soon settled with the proceeding dismissed with each party bearing its own costs.

Falcon then commenced action against Makin & Kinsey Solicitors, arguing that their negligence caused him to lose the opportunity to recover damages in the sum of $13, 285,000 against the architect. He claimed that when the firm stopped acting for him, he was unable to secure appropriate legal representation due to being in a remote location overseas and was forced to settle the matter on unfavourable terms.

Supreme Court found there was no negligence

Justice Forbes dismissed Falcon’s claim, finding that any loss he had suffered had been caused by the instructions he gave to his new solicitor and not by the fact that Makin & Kinsey had ceased acting. The firm’s decision to cease acting for Falcon was not accompanied by any negligence on the firm’s part or any failure to properly advise him of deadlines or of the need to act to preserve his rights.

Falcon sought leave to appeal against that decision, setting out a number of appeal grounds.

• He had been denied the opportunity to cross-examine the defendant about matters which were in dispute;
• He had been informed that the defendant was not going to give evidence only minutes in advance, which prejudices his case;
• He was not advised that he might be joined as a party to a costs dispute between the firm and the barrister;
• The manner in which he was notified that the firm was no longer acting made it impossible for him to organise alternative representation;
• The reason he settled the matter was his inability to organise appropriate alternate representation from overseas or to communicate with his former lawyers from overseas.

Falcon was refused leave to appeal.

The Court of Appeal’s reasons

The judge considered how Falcon had come to retain Makin & Kinsey. He had approached the firm after seeking advice from a barrister about the prospects of the claim. The parties participated in a mediation, which failed to resolve the dispute, and Falcon then advised his solicitors that he would be out of the country for some time.  His solicitors then advised him that the matter would be difficult to progress due to the lack of documentation. They subsequently advised that they were ceasing to act.

The costs dispute

A dispute regarding fees due to the barrister Falcon had consulted had also arisen, with the firm claiming that Falcon had engaged the barrister directly.

The firm claimed to have met with Falcon and advised him of the possibility he would be joined as a party to the costs dispute should the barrister take action against the firm to recover the fees. This would lead to the firm having a conflict of interest and being unable to act for him in the proceeding against the architect. Falcon denied this meeting ever happened and said he was not so advised.

Falcon was subsequently joined as a party to the costs dispute and the firm withdrew from acting for him due to the conflict of interest.

The court’s findings

The court accepted that Falcon was not advised about the possibility of being joined as a party to the costs dispute and about the potential conflict. However, it confirmed the Supreme Court judge’s findings that the firm had not been negligent and that any loss Falcon sustained was caused by his instructions to his new solicitor and not be the firm’s withdrawal.

The court found that Falcon’s other grounds of appeal had no substance and that, even if they could be sustained, had no bearing on the judge’s finding that the firm did not deprive Falcon of the opportunity to pursue his claim, and that there had been no negligence.

The court further found that Falcon’s communications with his new solicitor, while he was overseas, belied his claim that it was impossible for him to communicate from overseas or to organise suitable representation. Falcon had instructed his solicitor to settle a matter that was not due to be heard for another six months. While the firm’s withdrawal, while he was overseas, may have been less than ideal, he could have instructed another solicitor to continue to pursue the claim.

The application for leave to appeal was dismissed.

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