Sharon Minkin v Lesley Landsberg (Practising as Barnet Family Law) (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Tomlinson,Lord Justice Jackson |
| Judgment Date | 17 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1152 |
| Docket Number | Case No: B2/2015/0154 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 November 2015 |
[2015] EWCA Civ 1152
Lord Justice Jackson
Lord Justice Tomlinson
and
Lady Justice King
Case No: B2/2015/0154
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
DISTRICT JUDGE JACKSON
3CL10395
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Sugar (instructed by Simons, Levine & Co) for the Appellant/Claimant
Miss Jacqueline Simpson (instructed by Mills & Reeve LLP) for the Respondent/Defendant
Hearing date: 13 th October 2015
Lord Justice Jackson:
This judgment is in seven parts, namely:
Part 1. Introduction
| 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 |
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.
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.
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.
After these introductory remarks I must now turn to the facts.
The husband and the wife were married on 1 st 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").
There were problems in the marriage and the parties decided to divorce. They effectively separated on 11 th November 2007, although they remained living in the same house.
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.
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:
i) The house would be sold and, after discharging various debts, the proceeds would be divided 67% to the wife and 33% to the husband.
ii) The husband would have the Spanish flat.
iii) The husband would pay to the wife £800 per month for the maintenance of the children.
iv) The husband would pay £300 per month maintenance for the wife.
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 12 th 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:
"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:
(a) dealing with this matter through mediation without the advice of solicitors; and
(b) negotiations through solicitors without any disclosure;
(c) an application to the court with the requirement for full and frank disclosure before a settlement could be reached."
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 23 rd February 2009 Tilley wrote to Tynan Solicitors ("Tynan"), who were acting for the husband as follows:
"Our client is extremely distressed about your client's recent behaviour towards her and the children. Our client states that your client is bullying her and has threatened her that if she does not settle the financial matters regarding the divorce he will make her life unbearable.
Given that the parties cannot live within the same house amicably and that Mrs Minkin cannot leave her children, we ask that your client move out of the former matrimonial home temporarily until the matrimonial assets can be divided fairly.
Mrs Minkin informs us that she has signed a consent order but that this was done under duress. Mrs Minkin withdraws her consent to the order as drawn up by your selves. We ask that you send a copy of the letter to the Court immediately. We have instead been instructed to issue Ancillary Relief proceedings."
Tilley sent a copy of that letter to their client, the wife.
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 4 th 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 7 th April 2009.
Following the hearing on 4 th March, the wife consulted an organisation called Jewish Women's Refuge. On their advice she made an appointment to see the defendant.
At a meeting on 9 th 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.
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 9 th March 2009, the defendant confirmed the client's instructions. She then stated:
" My Advice
On the basis of the information given to me, I advised you that the Order as currently drafted would need amending to show that the sale of the former matrimonial home is to be postponed and that the property is to be let for 12 months.
There are other amendments that will have to be made as the recitals do not match the order in so far as in the recitals, the first part of the order; it states how the net proceeds of sale are to be applied however they are different from the body of the order. To that end I have written to Gary, copy enclosed, requesting full details of the creditors.
Other amendments include the chattels for both the former matrimonial home and the Spanish property and an amendment so that the spousal maintenance continues even in the event of Gary's death so that such payments are to be met from his estate.
I raised concerns that if Gary were to reside in America it would be difficult for you to enforce the order as you would have to have the order registered in the US and would have to instigate enforcement proceedings there. Such proceedings would be costly and unlikely to succeed as he would suggest that his circumstances have changed.
Action to be taken
I have written to Gary seeking further information. Upon receipt of the Information I shall re-draft the order for your approval. In the meantime I should be obliged if you would kindly let me know whether you have completed/or signed a Statement of Information for a Consent Order. "
On 10 th 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:
"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."
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...
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