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05 December 2017

Can you be sued on free advice?

We are all asked, from time to time, to offer quick free advice for family, friends, acquaintances and sometimes even clients but what if that advice is wrong?

It is often thought that the fact no money changes hands means there is no contract and therefore no come-back. But the absence of a contract does not mean there is no duty to offer advice with the same level of skill and care as that owed to a paying client. Such a duty still exists in the law of tort.

The “assumption of responsibility” test is critical. Was the advice proffered in circumstances where the professional providing the advice knew or ought to have known that the person to whom the advice was given would rely on that advice?

Whilst a disclaimer by the professional offering the advice will often assist, a court will also consider what representations the professional made about their qualification, experience and willingness to help, whether that advice was relied upon (and if so whether reasonably), was the advice generic or specific, in what context was the advice given and was the criticised conduct an act or an omission.

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