Caroline Therese Mathiesen v Clintons (A Firm)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Asplin |
| Judgment Date | 11 October 2013 |
| Neutral Citation | [2013] EWHC 3056 (Ch) |
| Date | 11 October 2013 |
| Court | Chancery Division |
| Docket Number | Case No: HC11C02193 |
[2013] EWHC 3056 (Ch)
IN THE HIGH COURT OF JUSTIEC
CHANCERY DIVISION
Rolls Building, 7 Rolls Building,
Fetter Lane, London, EC4A 1NL
Mrs Justice Asplin
Case No: HC11C02193
Roger Stewart QC and Simon Hale (instructed by Lester Aldridge LLP) for the Claimant
Michael Soole QC Jamie Smith and Shail Patel (instructed by Bond Dickinson LLP) for the Defendant
Hearing dates: 12 – 14, 17, 20 – 21 June 2013
This is a claim for damages for alleged professional negligence, made by the Claimant, Mrs Caroline Mathiesen ("Mrs Mathiesen") against her former solicitors, Clintons ("Clintons").
Mrs Mathiesen retained Clintons to protect her interests at a time when she had substantial matrimonial difficulties and suspected her husband, Per Mathiesen ("Mr Mathiesen") of diverting monies earned from the business of which he was the founder, Matki plc ("Matki") from her and their children. Between the time when Clintons were first retained in June 2002 and the completion of a series of documents on 4 July 2003 which has been termed "the First Retainer", it is alleged that Clintons failed to protect Mrs Mathiesen's interests and, in particular failed properly to advise Mrs Mathiesen in relation to a shareholders' agreement dated 4 July 2003 ("the Shareholders' Agreement"). It is alleged that had Mrs Mathiesen been properly advised, she would never have agreed to the Shareholders' Agreement in the form in which it was executed.
Thereafter, in or about 2005 Mrs Mathiesen instructed Clintons to monitor Mr Mathiesen's compliance with the Shareholders' Agreement ("the Second Retainer"). Mrs Mathiesen contends that had Clintons performed their task properly they would have advised her that: she should take independent advice; Clintons did not have the documents expressly referred to in the Shareholders' Agreement enabling them to advise on compliance; that the Shareholders' Agreement had not provided her with the protection she required; and that Clintons were in no position to advise her as to whether the Shareholders' Agreement was being complied with or not.
Further it is alleged that the failure to advise Mrs Mathiesen properly in relation to the Second Retainer is attributable to a realisation by Mr John Seigal, a partner of Clintons who advised Mrs Mathiesen in relation to the Shareholders' Agreement, ("Mr Seigal") that Clintons had been in breach of the First Retainer. It is alleged that he is guilty of deliberate concealment for the purposes of section 32 of the Limitation Act 1980. Alternatively, it is alleged that the principle in Gold v Mincoff [2001] Ll Rep 423 applies to this case.
Mrs Mathiesen contends that but for the alleged negligence, the Shareholders' Agreement would have restricted the amount of salary to be paid to Mr Mathiesen's sole account to £250,000 per annum plus 5% per annum increases and as a result the total of family assets would have been greater. Alternatively, it is said that if such an agreement had not been reached, Mrs Mathiesen would have divorced her husband in 2004 which it is said would have resulted in her being awarded more in ancillary relief proceedings than was the case in 2011.
The Witnesses and their recollection
I found Mrs Mathiesen to be an extremely evasive and at times, an unreliable witness. It was clear to me that she had no clear recollection of the details of events in 2002 – 2005 which given the passage of time and the level of tension and argument on all of the relevant issues which took place between her and her husband is not surprising. Furthermore, she changed her case in cross examination in particular, in relation to a central issue which goes to the heart of her case, namely whether she had agreed and understood that her husband's salary was to increase annually. In cross examination for the first time, and contrary both to her pleaded case and the contents of her first witness statement, she stated that she had always appreciated that Mr Mathiesen's salary would increase by 5% per annum. Furthermore, despite it being readily apparent that Mrs Mathiesen is an intelligent person who took a detailed interest in the financial affairs with which the dispute is concerned, albeit that she was unused to company accounts or legal documentation, she sought to portray herself as unable to understand even the essence of the clause at the heart of this matter. In my judgment, it is clear, for example, from Mrs Mathiesen's response to Ms Tournier in September 2002, to which I refer at paragraph 23 and the way in which she updated Ms Tournier by email on 1 December 2002 to which I refer at paragraph 60, that she is sophisticated and had a good working knowledge and understanding of the negotiations and the assets over which she sought control.
The only other witness was Mr Seigal himself. He is a solicitor of many years standing and is managing partner at Clintons who was responsible for the firm's professional indemnity insurance cover at the relevant time. In 2002 he specialised in Corporate and Employment law. He also became involved in advising private clients of the firm. At times, I found Mr Seigal to be a defensive and evasive witness.
Despite his lengthy experience, the attendance notes of meetings with and advice given to Mrs Mathiesen are sparse and at times non-existent and a number of documents were misplaced in Mr Seigal's files. Mr Stewart QC on behalf of Mrs Mathiesen made submissions on these issues and reminded me about the risk of "happy hindsight". This phrase was coined by Dankwerts J in Goody v Baring [1956] 1 W.L.R. 448, at 452, to mean giving evidence based not so much on actual recollection as on usual practice and what would be likely to have been done. In assessing Mr Seigal's evidence I take account of this factor and his candid acknowledgement that given the passage of time, he did not have a clear recollection of some of the crucial occasions on which advice was allegedly given.
In addition, Mr Stewart QC placed reliance upon the failure to call Ms Tournier, an assistant solicitor at Clintons at the relevant time, who has since left the firm and who also advised Mrs Mathiesen. Reliance was also placed upon the absence of any evidence from Ms Maggie Rae, a partner of Clintons at the relevant time who is now a consultant and who advised Mrs Mathiesen in relation to her divorce. In this regard, Mr Stewart QC referred me to Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] PNLR 122. At page 128 of that report, Aldous LJ noted that it is open to the court to draw such inferences on the facts as are appropriate and went on:
"In doing so, and in deciding whether or not to accept evidence that was given, it is permissible to take account of a party's unexplained failure to call a witness who on the face of it could have given direct evidence on the matters in question. Beyond this, each case must depend upon its own particular facts."
It seems to me given that the matters are dealt with in the contemporaneous documentation, it is not appropriate to draw any particular adverse inference from the failure to call either of the ladies concerned. This is the case in particular, in relation to Ms Tournier whose involvement is set out in detail in the attendance notes she composed and in the detailed emails both to her client and internally to Mr Seigal. In comparison, Ms Rae's involvement is much less central. Her understanding of the position is also made clear in the correspondence and there is nothing in the documentation or Mrs Mathiesen's evidence to the effect that she told Ms Rae that she understood the Shareholders' Agreement to limit Mr Mathiesen's salary to be paid into his sole account to £250,000.
Duties in general
Before turning to the relevant facts, I should mention that there was no dispute as to the scope of the professional duties owed by a solicitor to his client in the circumstances which arose in this case. Mr Seigal accepted in cross examination that a solicitor is obliged to follow his client's instructions or to explain why it is not possible to do so. He also agreed that it is necessary to tailor the presentation and explanation of advice to the particular client and in the circumstances of this case, that this principle involved him understanding the Shareholders' Agreement and ensuring that Mrs Mathiesen also understood it. Not surprisingly, he also accepted that if he thought he had or might have been negligent, he was obliged to inform his insurers and advise the client to take independent advice.
The Relevant Facts
Given the nature of the claim it is particularly important to set out the facts in this matter in some detail. Mrs Mathiesen married Per Mathiesen on 20 December 1993. He is her senior by a considerable number of years and has four adult children from a previous marriage. Mr and Mrs Mathiesen have three children ("the Children"). Mr Mathiesen is the founder of Matki, a successful public limited company which manufactures and markets showers and related bathroom accessories. Mrs Mathiesen issued divorce proceedings in September 2010 and a decree nisi was granted on 11 January 2011. Judgment in the ancillary relief proceedings was handed down in April 2012.
The First Retainer
It is common ground that Mrs Mathiesen sought the advice of Clintons in June 2002 because she had concerns about the financial situation between herself, Mr Mathiesen and the Children as a result of the matrimonial difficulties which she and Mr Mathiesen were experiencing. It is also not disputed that at this time Mrs Mathiesen was concerned that Mr Mathiesen might be giving large sums to his adult children from his first marriage and to the couple's former nanny Samantha Lavin with whom she suspected him of...
To continue reading
Request your trial
-
Peter Earnshaw and Others v The Prudential Assurance Company Ltd (Defendant/Applicant)
...have been no limitation defence. This sort of claim was considered in Gold v Mincoff [2001] Lloyd's Rep PN 423 and more recently in Mathiesen v Clintons [2013] EWHC 3056 (Ch). This claim has not been pleaded but there is a fatal flaw in any event. As is explained in Mathiesen v Clintons [1......
-
Roger Keith Adams and Others v Atlas International Property Services Ltd and Others
...18H–19G). See also Liverpool [2000] Lloyds LRPN 836 at paragraphs 11 and 27." 208 I was also referred to the judgment of Asplin J. in Mathiesen v. Clintons [2013] EWHC 3056 (Ch) at [182]: "In the circumstances, it is unnecessary to decide whether the principle in Gold v Mincoff applies wher......