(Court of Appeal, Jackson, Tomlinson, King LLJ, 17 November 2015)
Practice and procedure – Financial remedies – Professional negligence – Solicitor instructed to draft consent order – Whether the solicitor was under a duty to warn and advise of the consequences of consenting to orderThe woman's appeal from a decision dismissing her claim against solicitors for professional negligence during financial remedy proceedings was dismissed.
When the woman, an experienced accountant, divorced she negotiated a financial settlement with her husband. She sought advice from a firm of solicitors who stated that on a preliminary review of the proposals it did not seem to be a satisfactory offer but further disclosure would be necessary.
The solicitors wrote to the husband's legal representatives stating that, although the wife had signed a consent order, it had been signed under duress and that she now withdrew her consent to the order as drafted. A copy of the letter was sent to the wife but the parties subsequently presented the draft consent order to the court for approval. The court refused to approve the consent order and directed the husband to disclose the details of his debts which were to be repaid out of the proceeds from the sale of the house.
The wife asked the solicitors to put the matters which had been agreed into the consent order in proper form. The two firms of solicitors drafted a further consent order which was subsequently approved by the court. The wife subsequently regretted entering the consent order and brought a claim against her solicitor for professional negligence on the basis that they had failed to advise or warn her against entering into the consent order. At first instance the claim was dismissed on the basis that the retainer had been limited and the solicitors had been under no duty to give such advice or warnings. The wife appealed on the grounds that the retainer had not been limited to the extent that the judge had held and that the solicitors had been under a duty to give broader advice.
The appeal was dismissed. A solicitor was under a contractual duty to carry out the tasks which the client had instructed and the solicitor had agreed to undertake. It was implicit that the solicitor would proffer advice which was reasonably incidental to the work being carried out, having regard to the circumstances of the case including the character and experience of the client.
In the present case it would have been good practice for the solicitor to have expressly confirmed the limited nature of the retainer. However, on the judge's findings of fact, the solicitor had been working under a limited retainer. The task had been to re-draft the consent order in a form likely to be approved by the court. The solicitor had not had a duty to warn the wife or to investigate the question of duress.
Lady Justice King highlighted the difficulty in cases involving two unrepresented litigants seeking approval of a consent order, specifically that the judge could not and should not attempt to interpret the minutiae of the agreement and to redraft the proposed consent order. Obvious errors could be corrected but the judge's task was not to painstakingly work through with the parties every possible parameter of the draft order. The judge could not be seen to be giving legal advice or to interfere with an agreement reached between the parties.
Matrimonial solicitors were now increasingly offering bespoke services to act for a litigant in person on a discrete part of the case. Commonly, this included drafting a Form E or drafting an order. Such a service was invaluable to clients and the courts. If solicitors were put in a position in which they acted on a limited retainer but found a much broader duty of care was imposed on them they might not accept instructions in this way.
It went without saying that where a solicitor acted upon a limited retainer, the supporting client care letters, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client's specific instructions. It may well be that with further passage of time, tried and tested formulas will be devised and used routinely by practitioners providing such a limited retainer service.
Case No: B2/2015/0154
Neutral Citation Number:  EWCA Civ 1152
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
DISTRICT JUDGE JACKSON 3CL10395
Royal Courts of Justice
LORD JUSTICE JACKSON
LORD JUSTICE TOMLINSON
LADY JUSTICE KING
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LESLEY LANDSBERG (PRACTISING AS BARNET FAMILY LAW)
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Mr Simon Sugar (instructed by Simons, Levine & Co) for the Appellant/Claimant
Miss Jacqueline Simpson (instructed by Mills & Reeve LLP) for the Respondent/Defendant
Hearing date: 13th October 2015
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Lord Justice Jackson:
 This judgment is in seven parts, namely:
Part 1. Introduction
|Part 1: Introduction||Paragraphs 2 to 5|
|Part 2: The facts||Paragraphs 6 to 21|
|Part 3: The present proceedings||Paragraphs 22 to 28|
|Part 4: The appeal to the Court of Appeal||Paragraphs 29 to 31|
|Part 5: What was the extent of the solicitor's duty to advise?||Paragraphs 32 to 49 |
|Part 6: Decision||Paragraphs 50 to 58|
|Part 7: Executive summary and conclusion||Paragraphs 59 to 63|
This is an appeal by the claimant in a solicitor’s negligence action against the dismissal of her claim on liability. The central issue in this appeal is whether the solicitor’s duties were limited to the extent that the defendant alleged and the judge has held.
The defendant solicitor in this case was instructed to put into an acceptable form the terms of a consent order agreed between the husband and the wife following divorce. Although the underlying matrimonial proceedings were in progress at a time when legal aid was available, the issues thrown up by this case have now assumed wider importance. That is because legal aid is no longer available for divorcing couples seeking to resolve their financial disputes. As King LJ explains in her judgment, it is now commonplace for the parties to negotiate their own agreements and then to instruct solicitors for limited purposes, such as drawing up a consent order for the court’s approval under section 25 of the Matrimonial Causes Act 1973. Therefore it is now often the case in the matrimonial context that solicitors undertake a limited retainer of the kind which is in issue in the present case.
The claimant in this action is Mrs Sharon Minkin. Her ex-husband is Mr Gary Minkin. When summarising the matrimonial proceedings, I shall refer to the parties as the husband and the wife. When discussing the professional negligence action, I shall refer to Mrs Minkin as the claimant. The defendant solicitor is Ms Lesley Landsberg, who practises as Barnet Family Law.
After these introductory remarks I must now turn to the facts.Part 2. The facts
The husband and the wife were married on 1st September 1991. The husband was a financial advisor, who set up his own business, Consolidated Financial Management Limited. The wife was an accountant, who assisted in the husband’s business. They had three children. In later years they lived at 50 Moffats Lane, Brookmans Park, Hertfordshire (“the house”).
There were problems in the marriage and the parties decided to divorce. They effectively separated on 11th November 2007, although they remained living in the same house.
Following the filing of a divorce petition, the husband and the wife entered into discussions about the financial position. Their main assets were the house, a flat in Spain and the husband’s business.
Early in 2009 the husband and the wife reached agreement as to the division of their assets and their future financial arrangements. They recorded this agreement in a home made document headed “Minutes of Agreement to Consent to an Order”. In essence they agreed that:
i) The house would be sold and, after discharging various debts, the proceeds would be divided 67% to the wife and 33% to the husband.
ii) The husband would have the Spanish flat.
iii) The husband would pay to the wife £800 per month for the maintenance of the children.
iv) The husband would pay £300 per month maintenance for the wife.
The wife then had second thoughts about this agreement and she sought the advice of Tilley and Co (“Tilley”), a firm of solicitors practising in St Albans. In early February 2009, the wife had a meeting with Tilley to discuss the issues. On 12th February 2009, Tilley wrote to the wife setting out the terms on which they were willing to continue acting for her. In the first part of that letter they wrote:
“On a preliminary review of the settlement proposals it does not seem to be a satisfactory offer but would need further disclosure to back this advice up. I advised you that if you felt comfortable with the offer and felt that it was a good deal then you could of course accept it. However, the other options available to you are:
(a) dealing with this matter through mediation without the advice of solicitors; and
(b) negotiations through solicitors without any disclosure; and
(c) an application to the court with the requirement for full and frank disclosure before a settlement could be reached.”
The husband was annoyed that the wife had been having second thoughts about the financial arrangements. There seems to have been an incident between them. On 23rd February 2009 Tilley wrote to Tynan Solicitors (“Tynan”), who were acting for the husband as follows:
“Our client is extremely distressed about your client’s recent behaviour towards her and the children. Our client states that your client is bullying her and has threatened her that if she does not settle the financial matters regarding the divorce he will make her life unbearable.Given that the parties cannot live within the same house amicably and that Mrs Minkin cannot leave her children, we ask that your client move out of the former matrimonial home temporarily until the matrimonial assets can be divided fairly.Mrs Minkin informs us that she has signed a consent order but that this was done under duress. Mrs Minkin withdraws her consent to the order as drawn up by your selves. We ask that you send a copy of the letter to the Court immediately. We have instead been instructed to issue Ancillary Relief proceedings.”
Tilley sent a copy of that letter to their client, the wife.
Despite the incident between them, the husband and the wife presented their draft consent order to the court for approval. At a hearing in the Barnet County Court on 4th March 2009, Deputy District Judge Maunder refused to approve the consent order. In particular, he required the order to set out details of the husband’s debts which were to be repaid out of the proceeds of sale of the house. The court adjourned the approval hearing to 7th April 2009.
Following the hearing on 4th March, the wife consulted an organisation called Jewish Women’s Refuge. On their advice she made an appointment to see the defendant.
At a meeting on 9th March 2009, the claimant outlined the matters which had been agreed and asked the defendant to put the consent order into proper form, so that it could be approved by the court. The defendant accepted those instructions.
Later on the same day, the defendant sent two letters to the claimant. In the first letter, the defendant explained that she was acting under the “Legal Help Scheme”. That was a legal aid scheme in 2009 under which the costs of one meeting and a modest amount of work were covered. In the second letter dated 9th March 2009, the defendant confirmed the client’s instructions. She then stated:
On the basis of the information given to me, I advised you that the Order as currently drafted would need amending to show that the sale of the former matrimonial home is to be postponed and that the property is to be let for 12 months.There are other amendments that will have to be made as the recitals do not match the order in so far as in the recitals, the first part of the order; it states how the net proceeds of sale are to be applied however they are different from the body of the order. To that end I have written to Gary, copy enclosed, requesting full details of the creditors.Other amendments include the chattels for both the former matrimonial home and the Spanish property and an amendment so that the spousal maintenance continues even in the event of Gary’s death so that such payments are to be met from his estate.I raised concerns that if Gary were to reside in America it would be difficult for you to enforce the order as you would have to have the order registered in the US and would have to instigate enforcement proceedings there. Such proceedings would be costly and unlikely to succeed as he would suggest that his circumstances have changed.Action to be takenI have written to Gary seeking further information. Upon receipt of the Information I shall re-draft the order for your approval. In the meantime I should be obliged if you would kindly let me know whether you have completed/or signed a Statement of Information for a Consent Order.”
On 10th March 2009, the claimant replied. She confirmed that the defendant had correctly understood her instructions. She raised a number of points about the consent order. In the penultimate paragraph she wrote:
“I know the risks for maintenance if Gary is overseas but I don’t think he will agree to capitalise my maintenance and I just want to bring this all to an end as swiftly as possible.”
Thereafter the defendant corresponded with Tynan. The two firms of solicitors drew up a consent order, which (a) embodied the matters agreed between the husband and the wife and (b) was in a form likely to be approved by the court. The draft consent order was filed at court in late March 2009.
In early April 2009, Tilley, who had ceased acting for the claimant, sent their file to the defendant. The file arrived on 6th April 2009.
On 7th April 2009 the husband and the wife attended at the County Court without solicitors on either side. The court approved the draft consent order and made a formal order in those terms.
Subsequently endless problems arose. There was much litigation between the husband and the wife. I need not go through that saga. It is all set out in the judgment below, but the details are not relevant to the present appeal.
The claimant came to regret having entered into the consent order. She blamed the defendant for her advice or lack of advice, which had resulted in the consent order being made. In those circumstances, the claimant commenced the present proceedings.Part 3. The present proceedings
By a claim form issued in the Barnet County Court on 21st October 2011, Mrs Minkin claimed damages for professional negligence against Ms Landsberg practising as Barnet Family Law.
The main thrust of the claimant’s case was that the defendant was negligent in the advice that she gave and the advice she failed to give during the period leading up to the consent order. If the defendant had given competent advice, the claimant would not have submitted to the consent order dated 7th April 2009. Instead she would have obtained a much more favourable outcome of her claim for financial relief and property adjustment.
The claimant also made complaint about the defendant’s conduct of the subsequent litigation, as a result of which certain costs orders were made against the claimant.
A central issue in the case was the scope of the defendant’s retainer. The defendant’s case was that this was strictly limited. The defendant set out her recollection of what was agreed on 9th March 2009 in paragraph 15 of her witness statement as follows:
“The Claimant instructed me to complete the draft order to add missing information in relation to the debts owed by her and Gary Minkin, the contents of the former matrimonial home and a property in Spain and their agreement to postpone the sale of the former matrimonial home for 12 months, during which time it was to be let out. She informed me that she had been advised by Tilley & Co in relation to her financial position and entitlement to ancillary relief. I was led to believe by the Claimant that the agreement which had been reached with Gary Minkin reflected all that had been discussed between them and the advice of Tilley & Co. As a result, I was required only to redraft the poorly drafted order, that I was led to believe had been approved by the court but for the poor drafting, to reflect that which had already been agreed and include missing information to the extent necessary for the approval of the court to be obtained. For the avoidance of doubt, I was not instructed to advise on the contents of the Minutes or the merits of the agreement already reached. I would not have been able to give any advice in any event as I did not have a full picture of the parties’ financial resources. Mrs Minkin did not provide me with any documents relating to the parties’ respective financial resources and did not at any time seek advice as to the agreed settlement.”
The action came to trial on 4th November 2014 before District Judge Jackson. The trial lasted four days. The claimant appeared in person. Counsel, Miss Jacqueline Simpson, appeared for the defendant. Both the claimant and the defendant gave oral evidence and were subject to cross-examination. The defendant also called expert evidence as to the valuation of the husband’s business.
The judge delivered judgment orally on Friday 7th November 2014 after the completion of closing submissions. The judge dismissed the claimant’s claim. I would summarise her findings and reasoning as follows:
i) The defendant acted under a limited retainer, namely to embody the matters agreed between the husband and the wife in a consent order which the court would approve.
ii) The claimant’s instructions to the defendant required her to finalise the consent order swiftly before the husband departed to America.
iii) The claimant did not on any occasion before 7th April 2009 tell the defendant that she had agreed to the terms of the draft consent order under duress from her husband or that she wanted to resile from what she had agreed.
iv) The defendant received Tilley’s file on 6th April 2009. That file contained Tilley’s letter dated 23rd February 2009. This was the first intimation sent to the defendant of the claimant’s wish to resile from the agreement. The defendant did not read through Tilley’s file on the day when it arrived.
v) The claimant was an intelligent woman, who knew her own mind and understood the legal issues. She did not appear to be subservient to the husband.
vi) The defendant performed her duties under the retainer. She was not under a duty to advise on the merits of the agreement reached between the husband and the wife.
vii) If the defendant was negligent, the claimant’s claim would have failed because the damages claimed were speculative.
viii) The defendant handled the litigation after March 2009 competently. She was not responsible for the costs orders which the court made against the claimant.
The claimant is aggrieved by the judge’s decision, accordingly she appeals to the Court of Appeal. Part 4. The Appeal to the Court of Appeal
By an amended notice of appeal, the claimant appeals against the judge’s decisions on breach of duty and causation of loss. The essence of the claimant’s appeal is that the defendant’s retainer was not limited to the extent that the judge held. The defendant was under a duty to give broader advice and she did not perform that duty. Accordingly the Court of Appeal should set aside the judge’s decision on breach of duty. The Court of Appeal should remit the case to the County Court to determine the issues of causation and damages.
The defendant’s case on appeal is that the judge’s decision on breach of duty was correct. If the judge was wrong, however, the defendant accepts that the judge failed to address the issue of causation. In those circumstances, the Court of Appeal should analyse the evidence itself and conclude that the claimant could not succeed on causation. In relation to damages, the judge reached the right result, but by the wrong route.
The central issue in this appeal is the extent of the defendant solicitor’s duty to advise in circumstances where the parties had reached agreement and solicitors were being asked to put that agreement into proper form for approval by the court. I shall therefore address that issue first.Part 5. What was the extent of the solicitor’s duty to advise?
The extent of a solicitor’s duty to his/her client is determined by his/her retainer. The starting point in every case is to ascertain what the client engaged the solicitor to do or to advise upon.
The classic formulation of this principle is to be found in Midland Bank Trust Co Limited v Hett, Stubbs and Kemp (a firm)
 1 Ch 384, a case concerning solicitors’ liability for failure to register an option. At 402 to 403 Oliver J said:
“The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.Now no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practising a highly skilled and exacting profession, but I think that the court must beware of imposing upon solicitors - or upon professional men in other spheres - duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client's general interests, take it upon himself to pursue a line of inquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases such as Duchess of Argyll v Beuselinck  2 Lloyd's Rep 172; Griffiths v Evans  1 W.L.R 1424 and Hall v Meyrick  2 Q.B. 455 demonstrate that the duty is directly related to the confines of the retainer.”
In Carradine Properties Limited v DJ Freeman & Co
[1955-1995] PNLR 12, the plaintiffs engaged contractors to demolish a building in Clacton. The contractors damaged an adjoining property, thereby exposing the plaintiffs to liability. The plaintiffs instructed the defendant solicitors to make a claim against the contractors and, subsequently, to consider making a claim against the estate agents who had selected those contractors. The plaintiffs did not inform the defendants that they themselves had an insurance policy covering the incident and they did not ask the defendants to consider the plaintiffs’ insurance position. Thompson J held that the defendants were not negligent in failing to think of the point themselves and to proffer advice upon it. The Court of Appeal upheld this decision. Lord Denning MR attached importance to the fact that the plaintiffs’ managing director was very experienced in insurance matters. At 12-13, Donaldson LJ said that the precise scope of the duty to advise would depend inter alia upon the extent to which the client appeared to need advice. He continued:
“An inexperienced client will need and will be entitled to expect the solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client.”
In Hurlingham Estates Limited v Wilde & Partners
 1 Lloyd’s Law Reports 525, the defendant solicitors acted for the plaintiff in the purchase of (a) shares in a company called ALM and (b) the lease of the shop where ALM carried on business. The transaction was structured in such a way that the plaintiff incurred a tax charge of £69,455. Lightman J held that the defendants were liable for failing to advise the plaintiff how to structure the transaction so as to avoid the tax charge. He rejected the defence that the defendants had limited the scope of their duties by agreement. At 526 Lightman J said:
“The second remarkable feature is that there is no written record of the alleged (but disputed) agreement to limit the solicitors' duties. Any such agreement must plainly, if it is to have any legal effect, be clear and unambiguous: the client must be fully informed as to the limited reliance he may place on his solicitor and the reason for it (i.e. the solicitor's lack of any basic knowledge or competence), that this limitation is not a normal term of a solicitor's engagement, and that the client may be better advised to go to another solicitor who is not so handicapped and can be retained with no such limitation on his duties. Common sense requires that all these matters should also be recorded in an attendance note of the meeting where they are discussed and agreed, and should subsequently be recorded in a letter to the client.”
In National Home Loans Corporation PLC v Giffen Couch & Archer
 1 WLR 207, the plaintiff, a mortgage lender, instructed the borrower’s solicitors to investigate title, to report on the plaintiff’s printed form and to carry out a bankruptcy search. The defendants complied with those instructions. They did not, however, notify the plaintiff about the borrower’s existing arrears or the threat of legal proceedings. The trial judge held that the defendants were liable for breach of duty and awarded damages of £78,192. The Court of Appeal reversed that decision, holding that the defendants complied with their instructions and correctly answered all the questions on the plaintiff’s printed form. Peter Gibson LJ (with whom Hobhouse and Leggatt LJJ agreed) applied the principles stated in Midland Bank and Carradine Properties
. He took into account that the plaintiff was an experienced commercial lender, which had specified the particular matters about which it required to be advised.
In Credit Lyonnais SA v Russell Jones & Walker (a firm)
 EWHC 1310 (Ch);  All ER (D) 19, the claimant instructed solicitors in relation to the exercise of a break option contained in a lease. The solicitors gave correct advice about the service of the notice, but failed to advise about the requirement to pay £11,500. As a result of the claimant’s non-payment, the landlord declined to accept premature termination and the claimant had to buy its way out of the lease. Laddie J held that the solicitors were liable for breach of duty. He reviewed the authorities in this field including some well known cases which I have not traversed in this judgment. Laddie J summarised the principles at  in a passage with which I respectfully agree: