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(Queen's Bench Division; Field J; 10 November 2008)
Under the consent order the wife received the matrimonial home and £1.28 million in two lump sum payments, as a clean break settlement. The wife subsequently lost this money in a property development scheme. The wife sued her divorce lawyers, the solicitors and the barrister, for damages, claiming that they had negligently failed to advise her to delay reaching a settlement with the husband until after the House of Lords reached a decision in White v White.
Given that there had been a real possibility that the law would change in favour of applicant wives, especially in big money cases, and given that the total value of the joint assets had been over £4.5 million, the barrister had been under a duty, once he became aware that White was going to the House of Lords, to explain the potential implications of White to the wife, giving her the opportunity to decide whether to suspend negotiations until the Lords' made a decision. The barrister's failure to give that explanation amounted to negligence, and was not a mere error of judgment. The barrister ought to have advised the wife that there was a real, but far from certain, possibility that the decision in White would benefit her, and that she should weigh this against the negatives of abandoning the negotiations, which included ongoing dependence on the husband, the likely hostile reaction of the husband and the children, and the risk that the assets would fall in value. The fact that it seemed unlikely at the time that the wife would choose to postpone negotiations was no reason not to advise her of the potential implications of White. However, the barrister had not been under a duty to advise the wife that she ought to suspend the negotiations, indeed had he advised her that in his assessment she should proceed with the negotiations, that advice would not have been negligent. The wife had failed to prove that she had suffered any recoverable loss by reason of the barrister's negligence; the evidence established that the wife would have concluded the settlement in any event. The wife had failed to establish any negligence on the part of the solicitors, and had also failed to show that she would have repudiated the settlement agreement if the solicitor had invited her to do so after the decision in White was published.