Category: Insurance case law · Reviewed by Simon Temme, Account Executive · Last reviewed June 2026
A foundational authority on the scope of a solicitor’s retainer and the availability of concurrent liability in contract and tort.
The case concerned the firm of solicitors Hett, Stubbs & Kemp, which had acted for a father, Mr Geoffrey Green, and his son, Mr Geoffrey Walter Green, over a number of years in relation to a family farm. In 1961, the father granted the son an option to purchase the farm at a price fixed in the option agreement. The solicitors prepared the option but did not register it as an estate contract under the Land Charges Act 1925.
The option therefore lacked protection against a subsequent purchaser. In 1967, after a family disagreement, the father conveyed the farm to his wife at a nominal sum, defeating the unregistered option. By the time the son sought to exercise the option, it was unenforceable against the new registered proprietor. The son died, and the action was pursued by Midland Bank Trust Company Limited as executors of his estate.
The claim was brought against the solicitors for failing to register the option as a Class C(iv) land charge, thereby exposing it to defeat by a later disposition for value. A central difficulty was that the alleged negligence had occurred many years earlier (1961), with the loss only crystallising on the 1967 conveyance. The defendant firm argued that any contractual claim was time-barred, and that no separate tortious duty existed concurrently with the contractual retainer that could give the claimant a fresh limitation period running from damage.
The solicitors also argued that their retainer had been limited to specific instructions and did not extend to ongoing review of the registration position, and that they owed no continuing duty to advise on the vulnerability of the unregistered option as conveyancing law developed.
The case raised three issues of lasting importance. First, what is the proper scope of a solicitor’s retainer, and in particular whether a solicitor owes any continuing duty to advise a client on matters arising after the original instructions have been performed where the relationship continues. Second, whether a solicitor’s duty to a client sounds only in contract, or whether a concurrent duty of care arises in the tort of negligence so that the client may sue in either or both. Third, whether limitation runs from breach (contract) or from damage (tort), and the practical consequences of the choice for clients whose loss does not manifest until many years after the negligent act.
Oliver J held the solicitors liable. He found that the failure to register the option was a breach of the duty owed to the son as a client of the firm. More importantly for later case law, he held that a solicitor’s duty to a client arose both in contract under the retainer and concurrently in the tort of negligence, and that the client was entitled to frame the claim in whichever way produced the more favourable limitation outcome.
Oliver J rejected the older orthodoxy, derived from cases such as Groom v Crocker, that the solicitor’s duty was contractual only and that no tortious duty could exist in parallel. He held that the relationship of solicitor and client gave rise to a duty of care in tort founded on the assumption of responsibility, independently of the contract, and that the existence of the contract did not exclude the tortious duty.
On the scope of the retainer, Oliver J held that a solicitor is not under a continuing general duty to monitor a client’s affairs once a particular transaction is complete, but that where the solicitor continues to act and a new risk becomes apparent, a duty to advise may revive or extend. The cause of action in tort accrued only when damage was sustained, which on the facts was the date of the 1967 conveyance, and the claim was therefore in time.
A solicitor owes concurrent duties of care to a client in contract and in tort. The duty in tort is founded on the solicitor’s assumption of responsibility and the client’s reliance, and exists independently of, and concurrently with, the contractual duty under the retainer. The client may sue in either or both, with the more favourable limitation regime governing. The scope of the solicitor’s duty is defined primarily by the retainer, which should be construed sensibly against the factual matrix, but is not necessarily exhausted by performance of the immediate instructions where the solicitor continues to act.
Midland Bank v Hett, Stubbs & Kemp is one of the most-cited authorities in solicitors’ professional indemnity (PI) litigation. It established the principle of concurrent liability later approved by the House of Lords in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, and remains the orthodox starting point in modern claims.
For solicitors’ PI insurers, the case has significant practical implications. First, limitation is governed by section 14A of the Limitation Act 1980 in tort, with the date of knowledge potentially extending the primary six-year period. PI claims arising from conveyancing, will-drafting and trust work routinely come to light long after the contractual limitation period has expired, and the tortious cause of action is often the only viable route.
Second, the scope of the retainer remains the central battleground in PI defence. Solicitors are not insurers of their clients’ commercial outcomes, and a careful definition of the retainer at engagement (and a written record of any limitations) is the most effective control on PI exposure. The SRA’s Code of Conduct now reinforces this through the obligation to provide clear engagement information.
Third, the case underpins the modern doctrine that omissions to advise on matters obvious to a competent solicitor, even outside the strict scope of instructions, may give rise to liability where reliance is reasonable. Insurers should expect tortious claims to outlive contractual claims in the long-tail conveyancing and probate space.
By Matt Bartlett, Director, on 2026-06-06. Next review: 2026-12-06.
This entry is part of the Apex Insurance Wiki. Last reviewed by Matt Bartlett on 2026-06-06. Apex Insurance Brokers Limited, FCA FRN 724952, Companies House 07014570. Not regulated advice — consult your broker on your specific position.
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