Kelley v Corston
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE,LORD JUSTICE PILL,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 10 July 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0710-7 |
| Docket Number | QBENI 96/0493/E |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 1997 |
[1997] EWCA Civ J0710-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BATH DISTRICT REGISTRY
(MR JUSTICE LONGMORE)
Royal Courts of Justice
Strand
London WC2
Lord Justice Butler-Sloss
Lord Justice Pill
Lord Justice Judge
QBENI 96/0493/E
MR PETER SMITH QC & MR GOSLAND (Instructed by Longrigg Harris, Bath, BA1 2NT) appeared on behalf of the Appellant
MR RUPERT JACKSON QC & MISS SUSAN SOLOMON (Instructed by Veale Wasbrough, Bristol, BS1 5DS) appeared on behalf of the Respondent
On 15th March 1996 Longmore J dismissed the plaintiff's appeal from the decision of District Judge Rutherford on 2nd January 1996 that the plaintiff's claim against the defendant should be struck out under Order 18 r.19 of the Rules of the Supreme Court. He granted leave to appeal.
The defendant is and at all material times was a barrister in practice from chambers in Bristol. Her areas of practice included family law.
In 1984 the plaintiff married Nicholas Davies. In 1991 she was granted a decree nisi of divorce which was made absolute in November. There were no living children of the family. Efforts were made to achieve a negotiated settlement of her claims for financial relief. A hearing was arranged for 18th December 1991 and a few days before the hearing the defendant received instructions "to advise" the plaintiff. It is however common ground that the instructions represented delivery of a brief to attend the hearing for ancillary relief and represent the plaintiff. A conference was arranged and took place on 17th December. On the next day, at court, when the plaintiff was represented by the defendant the proceedings were compromised, and an order by consent was made by Deputy District Judge Johnson.
The terms of the order record
"Upon hearing counsel for both parties
and upon reading the affidavit sworn herein
and upon the petitioner undertaking
(1) to use her best endeavours to secure the release of the Respondent from his covenants under the mortgage held with the Halifax Building Society secured on the property known as 3 Edgar Buildings, Bath and until that release is obtained to indemnify the Respondent for any liability arising under the said mortgage
(2) to assign within 28 days of the date hereof to the Respondent her interest in the following policies:
(6 policies were then set out)
It is ordered that:
1. Upon petitioner securing the release of the Respondent from his obligations due under the said mortgage the Respondent shall transfer to the petitioner all his estate and interest in the said property
2. The Respondent do pay the petitioner maintenance in the sum of £300 per month together with the repayments due under the said mortgage until the 31 st March 1992
3. The Respondent do pay the petitioner a lump sum of £2,500 on or before the 31 st May 1992
4. Upon the said payment and transfer set out above all capital and income claims that either party may have against the other shall be dismissed and neither party shall be entitled to make any application under section 23 and 24 of the Matrimonial Act 1979 and under the Married Women's Property Act 1882 (this provision is recorded in counsel's brief as "dismissal of claim under MCA 1973 and MWPA 1882")
5. Pursuant to section 15 of the Inheritance (Provision for Family and Dependants) Act 1975 and the court considering it just so to do, neither the petitioner nor the Respondent shall be entitled on the death of the other to apply for an order under section 2 of the said Act
6. It is declared for the purposes of Regulations 96 and 97 of the Civil Legal Aid (General Regulations) 1989 that the said property and lump sum payable by the Respondent be used as a home for the petitioner and her dependants."
Agreed provision was made for costs, and the attendance of counsel, and the order concluded "there be liberty to apply".
Two particular features of this order should be noted. First, the Judge had read the relevant affidavit evidence produced by each side and second, it was expressly recorded that the court considered it "just" to make an order relating to inheritance arrangements. The reference to the Matrimonial Act 1979 was plainly an error and was meant to be a reference to the Matrimonial Causes Act 1973. The legal effect of the order made by the District Judge was dependent not on the consent of the parties but on the making of the order by the court. ( De Lasala v De Lasala [1980] AC 546 and Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424)
In Thwaite v Thwaite [1982] F1 the Court of Appeal adopted the principle applied in De Lasala v De Lasala that
"financial arrangement that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order;……"
This principle was said to
"represent a significant departure from the general principle frequently stated in cases arising in other divisions of the High Court, that the force and effect of consent orders derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent order….. A distinction, therefore, has to be made between consent orders made in this and other types of litigation."
The inclusion of section 33A of the Matrimonial Causes Act 1973 by section 7 of the Matrimonial & Family Proceedings Act 1984 confirms this principle.
Section 33A(1) provides
"Notwithstanding anything in the preceding provisions of this Part of this Act, on an application for a consent order for financial relief the court may, unless it has reason to think that there are other circumstances into which it ought to enquire, make the order in the terms agreed on the basis only of the prescribed information furnished with the application."
Such a provision would not have been necessary if the court had not been under a duty fully to enquire into proposed settlements for financial relief. The effect of the section is that provided prescribed information is before it, the court is permitted to make an order without further enquiry but it is not required to do so, and if there is any reason to think that there are other relevant circumstances the order may not be made until proper enquiry has been made. In Peacock v Peacock [1991] FCR 121 Thorpe J considered a consent order which had been made in 1982. In the course of his judgment he summarised the principle which has been understood and applied for many years.
"All the issues between the parties related to the 1982 consent order, its implementation, and its possible variations….. It is beyond question that such orders are not made simply upon evidence of the applicant's consent. The court has an over-riding duty to survey the sufficiency of the proposed consideration and the overall fairness of the orders proposed."
In July 1995 the plaintiff claimed damages for negligence against the defendant in "negotiating and advising the plaintiff to accept a settlement of her claim for ancillary relief against her husband". The details of the earlier negotiations and the circumstances in which the eventual compromise were reached do not require amplification in this judgment. The critical allegation is that the overall effect of the settlement meant that the plaintiff was unable to finance the repayments of the mortgage on the former matrimonial home after it was transferred into her na me. Having filed a defence which in addition to denying the allegations of negligence, alleged that the statement of claim did not disclose a reasonable cause of action "in that each and every act or omission of the Defendant relied upon is covered by the immunity from suit of the Defendant as a barrister", the defendant sought to strike out the statement of claim on the basis that "the whole of the plaintiff's claim is covered by the doctrine of immunity from suit which covers an advocate in relation to the conduct and management of a case in court, the conference and negotiated settlement being covered by the same doctrine".
The grounds of appeal from the decision of Longmore J are that he was wrong in law and in fact in upholding the decision of the District Judge that the defendant's actions on 18th December 1991 "in negotiating and advising the plaintiff to accept a settlement of her claim for ancillary relief against her former husband were so closely connected with the conduct of the case in court as to render the defendant immune from an action for negligence on the part of the plaintiff and (ii) that the advice given …….on……17 December 1991 was part and parcel of and rolled up in the defendant's conduct on 18th December and therefore subject to the same immunity". These grounds of appeal, together with the pleaded defence and the application to strike out the statement of claim, raise the question whether the present defendant is immune from suit, and if so the circumstances, if any, in which any such immunity may arise. For the purposes of the present appeal Mr Peter Smith QC on behalf of the plaintiff accepted that events on 17th and 18th December were so interconnected that if the defendant is indeed immune from suit for the actions on 18th December, there is no prospect of a successful claim in respect of the advice she gave on the previous day.
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