Mark Nieman v Withers LLP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 19 July 2022 |
| Neutral Citation | [2022] EWHC 2237 (QB) |
| Docket Number | Case No: QB-2020-002047 |
| Court | Queen's Bench Division |
[2022] EWHC 2237 (QB)
THE HONOURABLE Mr Justice Andrew Baker
Case No: QB-2020-002047
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Joshua Munro (instructed by Campbell Courtney & Cooney) appeared on behalf of the Claimant
Amanda Savage QC & Amber Sheridan (instructed by Clyde & Co LLP) appeared on behalf of the Defendant
Hearing dates: 6, 7, 8, 12 July 2022
Introduction
This judgment follows a trial conducted over five days earlier this month. I have reviewed all of the evidence relied on at trial, including my recollection and notes of the cross-examinations. There were no daily transcripts. I have considered with care all of counsel's submissions, written and oral. Having come to a clear view, I listed the case for judgment today rather than reserve it further. I shall not set out the facts as fully or in as much detail as I might have included in a longer reserved written judgment. I shall not deal specifically with every point of contention or argument raised, although, as I say, I have reflected on all of them in coming to the conclusions I shall now be stating.
The claimant, Mark Nieman, married in June 2000 when he was 41. His wife, Jeanette, took Mr Nieman's surname during their marriage so I shall refer to her as Mrs Nieman, although the context for these proceedings is Mr and Mrs Nieman's subsequent divorce.
Mr and Mrs Nieman became a couple in June 1998, having met at work. Both then worked in London for UBS. They maintained separate homes in London until they were married, although they spent much time together at each home before then. When they married Mrs Nieman sold what had been her flat in Tower Hamlets, and what had been Mr Nieman's home in Clapham became one of two family homes.
In 1997, with a loan of £100,000 from his father, a further £100,000 realised from his mother's estate (she having died that year), and a £400,000 mortgage loan, Mr Nieman had purchased 170 acres of farmland with four cottages in Kent (“the Farm”, “Cottages 1 to 3” and “Windy Corner”). The main farmhouse, which had no land to speak of, not even any real garden, had its own Land Registry title and was not part of that purchase. Mr and Mrs Nieman bought it together for it to become, and it became, the second family home. The net proceeds of sale on what had been Mrs Nieman's flat went toward the purchase. There was a £150,000 mortgage, and the balance (which may have been a similar amount to the mortgage; I do not have the evidence to find a precise figure) came from the balance of Mr Nieman's share of his late mother's estate, by then realised.
Mr and Mrs Nieman were married at a church local to the Farm. The first night they spent at the farmhouse as owners was their wedding night. By the time Mr and Mrs Nieman separated in 2015, leading ultimately to a divorce and financial settlement in 2017, the farmhouse was the sole family home. For the divorce process, therefore, and also for this judgment, the farmhouse was the former family home (“FFH”). There is a significant complication there, but I shall come on to that.
Mr Nieman claims against the defendant firm of solicitors, Withers LLP (“Withers”), that by reason of negligence in the advice they gave in the context of his separation and divorce, the terms he agreed with Mrs Nieman by way of financial settlement upon their divorce were not as good for him as they should have been; alternatively, he lost a real and substantial prospect of securing terms that were better for him. He therefore seeks damages representing the difference in value between the terms in fact agreed and better terms that, as he says, should have been secured for him, or on the basis of the loss of a chance of securing such terms.
Withers acted for and advised Mr Nieman principally in the person of Brett Frankle, a partner. Withers instructed experienced counsel, Marina Faggionato, to represent and advise Mr Nieman at and following a first directions appointment on 4 May 2017 in the divorce proceedings. Ms Faggionato's involvement is material because her advice as to the financial settlement merits tells against the idea that Withers' advice was negligent. She was fully briefed as to the facts available to Withers. She was instructed to represent Mr Nieman at the hearing and to negotiate for him, which of course carried with it an instruction to advise on the merits in the context of and for the purpose of any negotiations, and she did so advise. She was plainly not, as Mr Munro sought to suggest, merely parroting Withers' view in dereliction of her duty as counsel.
Ms Faggionato's advice was in substance similar to Withers' advice but more favourable to Mrs Nieman as to the likely bottom line. As regards Withers' advice, although other fee earners were involved, in particular Julian Lipson (a senior partner) at the outset, and Sarfraz Ali (an associate) later on, including at the first directions appointment, this was Mr Frankle's case as the partner with responsibility, he was active on the file and he gave or participated in the significant advice in the case. The claim is in substance a claim that Mr Frankle was negligent in the view he took and thus the advice he gave Mr Nieman as to the financial settlement merits of his prospective divorce.
Mr Frankle joined Withers in 2003, qualified with them, and joined their divorce and family team in 2005. In those early years he was involved in the leading case of Miller v Miller; McFarlane v McFarlane [2006] UKHL 24. He has been in continuous practice since qualifying, with a case load predominantly of financial settlement matters in divorce cases, as an associate for ten years and as a partner since 2015. Mr Nieman's case therefore came to him when he was ten years' qualified and quite newly made up to the partnership.
There is also a counterclaim by Withers for unpaid fees of £35,730.39, plus interest at 8 per cent pursuant to a provision in Withers' standard terms, accepted by Mr Nieman for the retainer. Pursuant to those standard terms, Withers invoiced Mr Nieman on a monthly basis by detailed itemised fee notes. Mr Nieman paid as invoiced until April 2017 but then stopped paying. The counterclaim, therefore, represents the total invoiced to Mr Nieman, no part of which he has paid, under Withers' fee notes dated 30 April, 31 May, 1 July, 31 July and 31 August 2017. The only defences raised are, firstly, that Withers' liability in damages, if any, should be set off against the entitlement to fees and, secondly, that Mr Nieman “ is entitled to and claims an assessment of the invoices”.
Relevant Matrimonial Law
Part II of the Matrimonial Causes Act 1973 deals with financial relief in divorce cases. It gives the court wide-ranging powers to order a lump sum or periodical payments (section 23), the transfer or settlement of property (section 24), the sale of property (section 24A), pension sharing (section 24B), pension compensation sharing (section 24E). The court is duty-bound to have regard to all the circumstances of the case in deciding whether, and if so in what manner, to exercise those powers (section 25(1)), the first consideration always being the welfare while a minor of any child of the family. Then section 25(2) provides that:
“As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24, 24A, 24B or 24E above in relation to a party to the marriage, the court shall in particular have regard to the following matters —
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each...
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