Williams v Thompson, Leatherdale and Francis
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FIELD,Mr Justice Field |
| Judgment Date | 10 November 2008 |
| Neutral Citation | [2008] EWHC 2574 (QB) |
| Court | Queen's Bench Division |
| Date | 10 November 2008 |
| Docket Number | Case No: HQ06X03033 |
[2008] EWHC 2574 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Field
Case No: HQ06X03033
Valentine Le Grice QC and Clifford Mailer (instructed by Robert Cook & Co) for the Claimant
Oliver Wise and Paul Mitchell (instructed by Beachcroft LLP) for the First Defendant
Charles Howard QC and Amanda Savage (instructed by Withers LLP) for the Second Defendant
Hearing dates: 7, 8, 10, 11, 14, 15 & 18 July 2008
Approved Judgment
Introduction
On 26 October 2000 the decision of the House of Lords in White v White [2001] AC 596 was handed down. Their Lordships held that when making orders for financial provision on divorce under section 25 of the Matrimonial Causes Act 19731 equality of division of the available assets should only be departed from if, and to the extent that, there is good reason for doing so. They disapproved of the approach that had grown up in the courts below whereby a claimant wife's reasonable requirements were treated as a determinative, and limiting, factor on the amount of the award which should be made in her favour. Assessment of financial needs was only one of the several factors to which the court should have regard. Thus in so-called “big money cases,” where the value of the available assets exceed the parties' financial needs, a claimant wife might well be entitled to a sum that exceeds her financial needs.
On 9 August 2000, almost 3 months before the decision in White, the claimant in this action, Mrs Carol Williams, signed an agreement (“the settlement agreement”) detailing the financial provision her husband, John Williams, was to make upon their divorce. Mrs Williams was advised by the first defendants (“TL”), a firm of solicitors based in Reading, and by the second defendant (“Mr Francis”) who also negotiated the terms of the settlement agreement. Mr Francis had additionally advised Mrs Williams in Conference on 3 March 2000.
In 2000, Mr Francis was an experienced junior counsel specialising in “ancillary relief,”viz the financial aspects of divorce. He was appointed Queen's Counsel in 2002.
The terms of the settlement agreement were embodied in a consent order made by District Judge James in the Reading County Court on 7 November 2000. Under the settlement agreement, Mrs Williams received £550,000 in September 2000 and a further £730,000 in November 2001, on terms that upon payment of these sums there was to be a full clean break both as to capital and income. Mrs Williams also became the sole owner of a house at 68 Dedmere Road, Marlow, valued at £150,000 but subject to a mortgage of £30,000, and was given a LandRover she had been using since leaving her husband. In addition, Mr Williams paid Mrs Williams' costs and undertook to use his best endeavours to ensure that she remained covered by his company healthcare scheme, but at no financial cost to himself.
Mr Francis advised Mrs Williams on the basis of the law as it existed before the decision in White. By mid June 2000, he was aware that both parties in that case had been given leave to appeal to the House of Lords; and on 9 August 2000 he knew that the appeals had been argued. However, he made no reference to the possible implications of White when advising Mrs Williams on 9 August 2008.
In this action, Mrs Williams claims against Mr Francis that he was negligent in failing to appraise her of the possible implications of White, including the fact that it was likely that White would lead to a change in the law in her favour. He thereby prevented her from making an informed decision whether to wait until after White had been decided before settling her claim. She alleges that if she had been given such advice she would not have settled her claim before the decision in White and would have ended up with a settlement or judgement which gave her significantly more than she received under the settlement agreement.
Against TL, Mrs Williams claims that following the House of Lords decision in White, TL ought to have: (a) taken steps to withdraw the application for a consent order in the terms of the settlement agreement; (b) advised Mrs Williams on the implications of the White decision and to have advised her that the settlement agreement was not binding on her and/or that negotiations could be re-opened and/or that her claim could be pursued before the Court; (c) alternatively, to (a) and (b), sought the advice of Mr Francis on the implications of the White decision.
Mrs Williams alleges that had these steps been taken she would not have settled on the terms contained in the settlement agreement but would have obtained a greater sum from her husband either by way of a fresh settlement, or in contested proceedings.
The issues to be decided
Williams v Francis
(i) Was Mr Francis negligent in failing to advise Mrs Williams as to the possible implications for her claim of the White appeal to the House of Lords, including the fact that a change in the law in her favour was likely; (ii) if so, would Mrs Williams have waited for the White decision before either settling with her husband or pursuing a claim in the courts; and (iii) if so, by how much, if at all, would Mrs Williams' recovery from her husband have exceeded what she received under the settlement agreement.
Williams v TL
(i) Were TL negligent in: (a) not withdrawing the application to have the settlement agreement made a consent order after the White decision was handed down and (b) not advising Mrs Williams that the settlement agreement was not binding on her and/or that negotiations could be re-opened and/or that her claim could be pursued before the Court; (ii) alternatively to (a) and (b), not taking advice from Mr Francis on the implications of White; (iii) if TL were negligent under (i) or (ii), would Mrs Williams have declined to settle on the terms contained in the settlement agreement but instead obtained a greater sum from her husband either by way of a fresh settlement, or in contested proceedings.
Events leading up to the settlement agreement
Following a 5 year period of co-habitation Mrs Williams married Mr Williams on 29 October 1977. She left him on 1 April 1999. There were three children of the marriage, Jonathan, Emma and Laura. Mrs Williams also had a daughter, Tara, from a previous marriage whom Mr Williams adopted. In the period March to September 2000, Emma was 17 years and Laura 14 years. The family home was Arrewig Farm in Buckinghamshire. When Mrs Williams left on 1 April 1999 she left all the children behind.
For a number of years prior to leaving her husband, Mrs Williams had been unwell. She had had silicone implants which had produced serious side effects. She also suffered a form of breakdown and was emotionally very low. She continued to suffer from silicone poisoning well into 2000.
Mr Williams was a shareholder in and employed by Jencons (Scientific) Limited (“Jencons”), a family company that manufactures scientific and laboratory equipment. Prior to November 1999, the other principal shareholder was Mr Williams' brother, Rob. Both John (Mr Williams) and Rob had inherited their shareholdings in the company from their father. In 1997, Jencons acquired Prior Laboratory Services from Mr Mark Prior who became Jencons' UK Sales Director and was engaged to Tara.
Sometime before 13 July 1999, Mrs Williams instructed Ms Marian Lynch, a partner in Leuty & Lynch, solicitors, to act for her following the breakdown of her marriage. In a letter dated 13 July 1999 to Ms Lynch, Mrs Williams wrote: “…a woman is attempting to blackmail me and to inform my husband that I have a new partner. Do I go along with this temporarily, or do I go to the police and run the risk of John being informed?” At this time, Mrs Williams was taping numerous telephone conversations, including in particular conversations with her husband.
In a letter dated 12 November 1999, Ms Lynch warned Mrs Williams that a new relationship could affect her divorce settlement.
Sometime before leaving her husband, Mrs Williams began taking singing lessons from a Mr John Rogers. She continued to see Mr Rogers until the end of 2001. By mid 2000, if not before, she was planning to earn money by singing professionally with Mr Rogers.
In about mid-November 1999, Mrs Williams ended Marian Lynch's retainer and instructed instead, TL. The two partners concerned were the senior partner, Mr John Thompson, who did little divorce work, and Mr Martin Lambert, who had a reasonable amount of experience in handling divorce cases. Mrs Williams was persuaded to instruct TL by a gentleman known as Mr Jan Alexander, whose real name is apparently Jan Ratip. Jan Alexander held himself out to be an experienced financial adviser and Mrs Williams relied on him for his financial expertise. Indeed, he attended virtually all the meetings she had with her solicitors and on occasions dealt with TL direct on Mrs Williams' behalf.
When Mrs Williams first instructed TL she was concerned that her husband was attempting to raise £2 million to buy Rob's shareholding in Jencons and thereby was dissipating assets that would otherwise be available to satisfy an order for financial provision in her favour. Acting on the advice of counsel (not Mr Francis) she obtained from a District Judge at Reading County Court a without notice injunction under section 37 (2) of the Matrimonial Causes Act 1973 restraining her husband from using any of the matrimonial assets to finance the...
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...the standard to be applied in clinical negligence cases. 47 The Seniority test was adopted by Field J in his recent judgment in Williams v. Leatherdale & Francis [2008] EWHC 2574 (QB). At paragraph 67 he said that “the relevant standard of care is that to be expected by a competent barriste......