The recent case of Minkin v Landsberg (Practising as Barnet Family Law) [2015] EWCA Civ 1152 recognises the inevitability of family practitioners providing ‘unbundled’ and bespoke services in the wake of legal aid cuts.
The facts
Mr & Mrs Minkin separated in 2007 although remained living under the same roof. Mr Minkin was a financial advisor and his wife was an accountant. During the next year or so they negotiated a financial settlement without solicitor involvement.
In early 2009 an agreement was reached and was recorded in a document headed “Minutes of Agreement to Consent Order”, which was drafted by one of the parties without a solicitor.
It outlined the following:
The house would be sold and after payment of debts, the proceeds would be divided 67% to the wife and 33% to the husband.The husband would retain the Spanish flat.The husband would pay the wife £800 per month child support.The husband would pay the wife £300 per month maintenance.
However shortly after the document was drawn up, the wife had second thoughts and sought advice from Tilley & Co.
Tilley & Co wrote to the wife in February 2009, setting out terms upon which they were willing to act;
“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:
dealing with this matter through mediation without the advice of solicitors;negotiations through solicitors without any disclosure; andan application to the court with the requirement for full and frank disclosure before a settlement could be reached.”
The husband was not happy with the wife’s actions. A letter was sent by Tilley & Co to Tynan Solicitors (who were acting for the husband) saying that “the wife had signed the Agreement under duress, [and that] she was withdrawing her consent and requesting the court be notified immediately”.
Despite this, a consent order was lodged with Barnet County Court and at a hearing in March 2009. DDJ Maunder refused to approve the consent order, seeking clarification of the amount of debts to be repaid from the sale proceeds of the family home, and adjourned matters to a hearing on 7 April 2009.
Following the hearing, the wife approached a different solicitor from Barnet Family Law, and requested that they amend the order and put into the correct format for the court to approve. Barnet Family Law confirmed the instructions in writing, which were in turn confirmed by the wife, who said:
“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.”
Barnet Family Law corresponded with Tynan Solicitors and the revised document was submitted to the court. Tilley & Co, who had finished acting for the wife, sent their file to Barnet Family Law. This arrived on 6 April 2009, after the revised document was sent to court.
On 7 April 2009, the husband and wife attended Barnet County Court without solicitors and the court approved the consent order.
Subsequently there were further problems between the husband and wife and litigation ensued. The wife blamed Barnet Family Law and commenced proceedings for damages for professional negligence against Lesley Landsberg, practising as Barnet Family Law.
Professional negligence claim
The main thrust of the wife’s argument was that Ms Landsberg was negligent in the advice provided prior to the order being made. The wife thought that she would have had a better settlement if she had not agreed to the order. She further alleged that Ms Landsberg’s conduct of subsequent litigation was poor, as costs orders were made against the wife.
The central issue to the case was the scope of the retainer. Ms Landsberg’s case was that it was strictly limited to simply redrafting the order.
After a four day trial, the District Judge dismissed the wife’s claims on the following points:
Ms Landsberg acted under a limited retainer, namely draw up the matters agreed between the husband and the wife in a consent order which the court would approve;The wife’s instructions to Ms Landsberg required her to finalise the consent order swiftly before the husband departed to America;The wife did not on any occasion before 7 April 2009 tell Ms Landsberg 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;Ms Landsberg received the file from Tilley & Co on 6 April 2009, which contained Tilley & Co’s letter dated 23 February 2009. This was the first intimation sent to Ms Landsberg of the wife’s wish to resile from the agreement. Ms Landsberg did not read through Tilley’s file on the day when it arrived;The wife was an intelligent woman, who knew her own mind and understood the legal issues. She did not appear to be subservient to the husband;Ms Landsberg 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;If Ms Landsberg was negligent, the wife’s claim would have failed because the damages claimed were speculative; andMs Landsberg handled the litigation after March 2009 competently. She was not responsible for the costs orders which the court made against the wife.
The wife was not happy with the decision of the District Judge. She appealed to the Court of Appeal on the basis that the retainer was not limited to the extent held and that Ms Landsberg was under a duty to give broader advice, which she did not perform.
Court of Appeal decision
The Court of Appeal examined the evidence and dismissed the wife’s appeal. Lord Justice Jackson confirmed that the defendant had been acting upon the basis of a limited retainer and was under no duty to give broader advice or warnings.
Lady Justice King agreed but emphasised to practitioners that now legal aid has been removed from financial remedy cases, individuals will expect and want solicitors to draw up agreements reflecting their wishes or other bespoke pieces of work. She recognised that this was invaluable for the smooth running of the court system and it would be detrimental to litigants in person and the courts if solicitors were not able to undertake such work for fear of being sued.
But King LJ highlighted that where a solicitor acts upon a limited retainer the supporting client care letter, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client’s specific instructions.
Comment
At TLT the Family team continue to offer both a full service to clients and where appropriate an unbundled service to suit a client’s requirements. Such requirements are always discussed and agreed in advance. Many clients are able to manage their own cases but prefer to have a legal advisor to hand if needs be.
This article first appeared on TLT website on 16 December 2015
Mark Sage Blogs 