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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Minkin v Lesley Landsberg (Practising As Barnet Family Law)  EWCA Civ 1152 (17 November 2015)
Cite as:  6 Costs LR 1025,  2 FLR 948,  1 WLR 1489,  EWCA Civ 1152,  1 FCR 584,  PNLR 14,  Fam Law 167,  WLR 1489,  WLR(D) 509,  WLR(D) 461
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ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
DISTRICT JUDGE JACKSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LADY JUSTICE KING
| SHARON MINKIN
|- and -
|LESLEY LANDSBERG (PRACTISING AS BARNET FAMILY LAW)
Miss Jacqueline Simpson (instructed by Mills & Reeve LLP) for the Respondent/Defendant
Hearing date: 13th October 2015
Crown Copyright ©
Lord Justice Jackson:
|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|
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.
"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."
"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.
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. "
"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."
"The Claimant instructed me to complete the draft order to add missing information in relation to the debts owed by her and Gary Minkin, the contents of the former matrimonial home and a property in Spain and their agreement to postpone the sale of the former matrimonial home for 12 months, during which time it was to be let out. She informed me that she had been advised by Tilley & Co in relation to her financial position and entitlement to ancillary relief. I was led to believe by the Claimant that the agreement which had been reached with Gary Minkin reflected all that had been discussed between them and the advice of Tilley & Co. As a result, I was required only to redraft the poorly drafted order, that I was led to believe had been approved by the court but for the poor drafting, to reflect that which had already been agreed and include missing information to the extent necessary for the approval of the court to be obtained. For the avoidance of doubt, I was not instructed to advise on the contents of the Minutes or the merits of the agreement already reached. I would not have been able to give any advice in any event as I did not have a full picture of the parties' financial resources. Mrs Minkin did not provide me with any documents relating to the parties' respective financial resources and did not at any time seek advice as to the agreed settlement."
i) The defendant acted under a limited retainer, namely to embody the matters agreed between the husband and the wife in a consent order which the court would approve.
ii) The claimant's instructions to the defendant required her to finalise the consent order swiftly before the husband departed to America.
iii) The claimant did not on any occasion before 7th April 2009 tell the defendant that she had agreed to the terms of the draft consent order under duress from her husband or that she wanted to resile from what she had agreed.
iv) The defendant received Tilley's file on 6th April 2009. That file contained Tilley's letter dated 23rd February 2009. This was the first intimation sent to the defendant of the claimant's wish to resile from the agreement. The defendant did not read through Tilley's file on the day when it arrived.
v) The claimant was an intelligent woman, who knew her own mind and understood the legal issues. She did not appear to be subservient to the husband.
vi) The defendant performed her duties under the retainer. She was not under a duty to advise on the merits of the agreement reached between the husband and the wife.
vii) If the defendant was negligent, the claimant's claim would have failed because the damages claimed were speculative.
viii) The defendant handled the litigation after March 2009 competently. She was not responsible for the costs orders which the court made against the claimant.
"The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.
Now no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practising a highly skilled and exacting profession, but I think that the court must beware of imposing upon solicitors - or upon professional men in other spheres - duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client's general interests, take it upon himself to pursue a line of inquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases such as Duchess of Argyll v. Beuselinck  2 Lloyd's Rep 172; Griffiths v. Evans  1 W.L.R 1424 and Hall v Meyrick  2 Q.B. 455 demonstrate that the duty is directly related to the confines of the retainer."
"An inexperienced client will need and will be entitled to expect the solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client."
"The second remarkable feature is that there is no written record of the alleged (but disputed) agreement to limit the solicitors' duties. Any such agreement must plainly, if it is to have any legal effect, be clear and unambiguous: the client must be fully informed as to the limited reliance he may place on his solicitor and the reason for it (i.e. the solicitor's lack of any basic knowledge or competence), that this limitation is not a normal term of a solicitor's engagement, and that the client may be better advised to go to another solicitor who is not so handicapped and can be retained with no such limitation on his duties. Common sense requires that all these matters should also be recorded in an attendance note of the meeting where they are discussed and agreed, and should subsequently be recorded in a letter to the client."
"A solicitor is not a general insurer against his client's legal problems, His duties are defined by the terms of the agreed retainer. This is the normal case although White v Jones  2 AC 207 suggests that obligations may occasionally arise outside the terms of the retainer or where there is no retainer at all. Ignoring such exceptions, the solicitor only has to expend time and effort in what he has been engaged to do and for which the client has agreed to pay. He is under no general obligation to expend time and effort on issues outside the retainer. However if, in the course of doing that for which he is retained, he becomes aware of a risk or a potential risk to the client, it is his duty to inform the client. In doing that he is neither going beyond the scope of his instructions nor is he doing "extra" work for which he is not to be paid. He is simply reporting back to the client on issues of concern which he learns of as a result of, and in the course of, carrying out his express instructions."
i) A solicitor's contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake.
ii) It is implicit in the solicitor's retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out.
iii) In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client.
iv) In relation to (iii), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told that which he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client.
v) The solicitor and client may, by agreement, limit the duties which would otherwise form part of the solicitor's retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.
i) The defendant was not advising the claimant about the merits of the agreement.
ii) The agreement may be unfair.
iii) There had been no investigation of the husband's means and assets.
i) As Miss Jacqueline Simpson for the defendant submits, all of those matters were obvious to the claimant.
ii) The claimant was an intelligent woman who had qualified and practised as a chartered accountant. The judge found that the claimant was well versed in the litigation; she understood Duxbury calculations and similar matters. The emails and correspondence in the Court of Appeal bundle amply illustrate the claimant's grasp of the issues and her competence.
iii) The claimant had, to the knowledge of the defendant, already taken legal advice from other solicitors about the proposed consent order.
iv) In the claimant's letter of 10th March 2009 she rejected the defendant's warning about the difficulties of enforcement after the husband had emigrated. She wrote in the terms which I have quoted in paragraph 16 above. The claimant made it plain that, despite the risks, she wished to conclude the consent order "as swiftly as possible".
Lady Justice King:
"19. Thus it is impossible for the parties to oust the jurisdiction of the court………….Furthermore, "the court does not either automatically or invariably grant the application to give the bargain [the] force of an order. The court conducts an independent assessment to enable it to discharge its statutory function to make such orders as reflect the criteria listed in section 25 of the Matrimonial Causes Act 1973 as amended": see Xydhias v Xydhias  2 All ER 386, per Thorpe LJ at 394.
20. Although the court still has to exercise its statutory role, it will, of course, be heavily influenced by what the parties themselves have agreed. Section 33A of the Matrimonial Causes Act 1973 as inserted by section 7 of the Matrimonial and Family Proceedings Act 1984 provides that, notwithstanding the preceding provisions of Part II of the Act (which deal with the court's powers and duties in relation to financial provision and property adjustment), on an application for a consent order, "the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with the application" (and see Family Procedure Rules 2010, rule 9.26). This permits the court to make the order in the terms agreed, but does not in any way inhibit its power to make further inquiries or to suggest amendments to the parties."
- A pension sharing order is technical and requires a number of annexes to be filed,
- Where the house is to be sold and the proceeds divided, the order must set out with precision what is to be deducted from the gross sale price before distribution. If the property is to be transferred to one party, provision to release the departing spouse from their covenants under the mortgage need to be made and back up arrangements set out in case a release cannot be achieved. What if there is CGT to be paid on a property, who is to pay it and what form should any indemnity take?
- Where the wife is to have term maintenance, until, for example, the husband retires, what factors will bring the maintenance to an end prior to that date and is the order to be extendable or, pursuant to s28(1)A Matrimonial Causes Act 1973, not extendable?
- If there is a maintenance order, is the Inheritance (Provision for Family and Dependants) Act 1975 to be excluded and if so, who is going to know the precise wording which is required in order to ensure that such a critical provision is effective?
Lord Justice Tomlinson: