Mills & Reeve act in successful defence of Court of Appeal case

The Court of Appeal has today handed down its judgment in Sharon Minkin v Lesley Landsberg (trading as Barnet Family Law) (2015) in which the appeal has been unanimously dismissed. Mills & Reeve acted for the defendant in the successful defence of the claimant’s appeal.

Background

The claimant instructed the defendant to put into an acceptable form the terms of a draft consent order agreed between the claimant and her former husband. The draft consent order dealt with the financial settlement between the parties on divorce. The draft consent order was approved but, after the event, the claimant regretted having entered into it (alleging that the settlement was less advantageous than it might have been). She blamed the defendant for failing to advise her more widely in relation to the terms of the settlement and brought a negligence claim against the defendant. A central issue in the case was the scope of the defendant’s retainer.

The trial at first instance was heard over four days in November 2014. The District Judge dismissed the claimant’s claim, finding that the defendant’s retainer was limited, she performed her duties under the retainer and was not under a duty to advise the claimant more widely in relation to the merits of the agreement reached between the claimant and her former husband. The District Judge also found that the damages claimed were speculative.

The claimant appealed.

The Court of Appeal

The claimant appealed the District Judge’s findings on breach of duty, causation and loss. In essence, she argued that her retainer of the defendant was not limited and the defendant was under a duty to provide broader advice (which she allegedly failed to do). The defendant maintained that the District Judge’s decision regarding breach of duty was correct. However, if it was not, the District Judge had failed to deal with causation and the defendant invited the Court of Appeal to do so and to find that the claim should not succeed on the issue of causation in any event. As for the damages claimed, the defendant invited the Court to conclude that the District Judge reached the correct conclusion but by the wrong route.

Lord Justice Jackson gave the leading judgment and examined the nature and scope of the claimant’s retainer of the defendant and considered the authorities. He found that the retainer was, indeed, limited (which is often the case in the matrimonial context) and rejected the suggestion that additional advice nonetheless needed to be given to the claimant concerning the merits of the underlying agreement.

He also found that there was nothing in the facts presented to the defendant, which meant that the defendant was on notice of the need to ask the claimant about alleged duress and there was no need for the defendant to review the position following their receipt of the file of the claimant’s previous solicitors (which arrived in the possession of the defendant very shortly before the draft consent order was approved).

In the circumstances, Lord Justice Jackson upheld the decision of the District Judge at first instance as to breach of duty and dismissed the appeal. He also went on to find that the claim failed for want of causation (because the claimant would not have acted differently, even if she had received different advice). Finally, he considered damages and concluded that while the position was not as straightforward as had been represented by the defendant, in the circumstances it was not necessary to determine the issue.

In her judgment, also dismissing the appeal, Lady Justice King took the opportunity to review the problems arising out of the lack of availability of Legal Aid/Public Funding and the importance of bespoke or “unpacked” services provided by solicitors to lay clients in respect of discrete parts of matrimonial finance cases.

She concluded that there would be very serious consequences if solicitors were not able to accept instructions on a limited retainer basis for fear of the imposition of a much broader duty of care requiring them to take steps far beyond those falling within the remit of the limited retainer.

Lord Justice Tomlinson agreed with both judgments.

Comment

While it is important for any retainer to be carefully documented, the point is that limited retainers are commonplace. As such, the scope of any retainer remains a front line defence and claims that a solicitor should give broad ranging advice need to be carefully scrutinised.

As a matter of practicality, there is a real need for solicitors to be able to give bespoke and limited advice to enable lay clients to deal with matrimonial finance claims in circumstances where they lack the funding for full representation. This decision enables them to do so with a degree of confidence that they will not be held responsible for unexpected outcomes that fall outside the scope of their limited retainer.

Partner Stephen King and principal associate Andrew Hipper made up the Mills & Reeve team acting for the defendant.