Minkin v Landsberg (Practising as Barnet Family Law) [2015] EWCA Civ 1152

(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 order

The 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.

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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

Part 1. Introduction

[2] 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.

[3] 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.

[4] 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.

[5] After these introductory remarks I must now turn to the facts.

Part 2.  The facts

[6] 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”).

[7] 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.

[8] 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.

[9] 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:


[10] 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:



[11] 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:


Tilley sent a copy of that letter to their client, the wife.

[11] 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.

[13] 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.

[14] 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.

[15] 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:


[16] 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:


[17] 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.

[18] 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.

[19] 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.

[20] 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.

[21] 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

[22] 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.

[23] 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.

[24] 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.

[25] 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:


[26] 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.

[27] 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:


[28] 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

[29] 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.

[30] 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.

[31] 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?

[32] 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.

[33] The classic formulation of this principle is to be found in Midland Bank Trust Co Limited v Hett, Stubbs and Kemp (a firm) [1979] 1 Ch 384, a case concerning solicitors’ liability for failure to register an option.  At 402 to 403 Oliver J said:


[34] 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:


[35] In Hurlingham Estates Limited v Wilde & Partners [1997] 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:


[36] In National Home Loans Corporation PLC v Giffen Couch & Archer [1998] 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.

[37] In Credit Lyonnais SA v Russell Jones & Walker (a firm) [2002] EWHC 1310 (Ch); [2002] 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 [28] in a passage with which I respectfully agree: