Is there an obligation to point out your opponent's mistake?

In Thompson v Arnold [2007] EWHC 1875 (QB), the claimant was wrongly diagnosed by her doctor, the defendant, the consequence of which led to her death. Shortly before her death, on the advice of her solicitors, she brought a claim for personal injury but noted, in her claim, that a separate claim pursuant to the Fatal Accidents Act 1976 (FAA) would be brought by her dependants after her death. She subsequently settled her action for damages against the defendant. Her solicitor, unaware that an FAA claim could not be brought in circumstances where the deceased had already agreed damages for injury, subsequently commenced proceedings under the FAA. The defendant's solicitors were fully aware that a FAA claim could not be brought in these circumstances but said nothing at the time of the settlement.

It was held by the court that there is no general duty on one party to litigation to point out the mistakes of another party or its legal advisors. In this case no representation by the defendant caused the claimant to make the mistake. Each situation does, however, turn on its own facts. A mistake induced by conduct of the defendant would be viewed differently.

However sympathetic a court may feel, it is extremely unlikely a solicitor owes a duty of care to another party as any alleged "duty" would conflict with his duty to his own client. However, there may be a fine line between conduct allowing a mistake to be made whilst saying nothing and conduct "inducing" a mistake to be made. Parties should always bear in mind the overriding duty to the court in deciding on which side of line their conduct falls.