"I see you're not talking - is this your ex-husband?"
"No, it's my ex-lawyer."
A court has ordered that a law firm pay £400,000 to a former client for failing to advise on her full entitlement in divorce proceedings.
Regional firm Cunningtons acted for Joanne Lewis in her divorce settlement, where she accepted £62,000 from her former spouse on a clean-break basis.
There had been no financial disclosure at that stage, and so the firm made no comment to Lewis as to whether the agreement was fair and reasonable, and asked Lewis to sign a disclaimer that she understood that point.
However, Lewis later brought a negligence claim for breach of duty, claiming that the firm should have advised her to apply for a share of her ex-husband's pension pot, potentially worth £1million.
Cunningtons argued that the scope of its retainer meant that it could not advise her fully without full financial disclosure, and that it had discharged its duty when Lewis chose to make a direct settlement negotiation with her ex-husband.
However, Judge Coe KC, in the High Court, said that Lewis was an unsophisticated client who had no knowledge of financial affairs. The court also found that Lewis had been bullied and intimidated by her former husband, and felt pressurised by him.
The judge said that Lewis was "desperate" at the end of her 23-year-long marriage, and her husband's police pension was the largest asset which the firm should have "actively considered."
"Any reasonably competent solicitor would have advised the claimant that the proposed settlement order was obviously and exorbitantly one-sided in the husband’s favour, giving the claimant less than 15% of the disclosed matrimonial assets and leaving her with an inadequate financial provision in the future, and particularly in retirement," said the judge.
Coe said the client was not offered sufficient advice about the reasonableness of the settlement and had been required to sign a disclaimer that her solicitors were not able to advise. This was a ‘clear’ breach of duty, as the firm had enough information to advise, even if in general terms, held the court.
The firm told RollOnFriday: "Cunningtons are naturally very disappointed at the outcome of this case. The firm does not believe the judgment is an accurate reflection of the firm or its practices, either generally or in this particular case".
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Comments
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Really worrying that the Firm thought and apparently still thinks this is ok. Have they ever heard of the duty to act in the client’s best interests, to take into account the needs of a vulnerable client, and to not act in their own interest by making a client sign a disclaimer when the firm doesn’t advise her of the risks? It’s appalling.
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Crazy decision. Clearly the judge saw a wrong to be righted here but commercially the client was told that the lawyers didn’t have all the info and if the client was hell bent on accepting the offer the law firm couldn’t be held responsible. If the law firm had said “and we don’t advise that you accept this offer” I suspect the firm would have been on a stronger footing.
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@Crackers - which is exactly what any competent firm would have done...
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@Crackers - that's what any competent lawyer would do.
As I always tell trainees, whenever your client is about to sign something you always send an email saying "I wouldn't necessarily advise signing it in its current form, but you may want to make a risk-based call on it, or I could send it back for one more turn to push on those last points, but you may want to press ahead without that on the basis that speed here is possibly of commercial value to you in and of itself" or something very similar.
Better still if you can send it milliseconds before signature, so that it's technically with the client before they sign, but at a point whereby they have already committed fully to physical gesture of putting pen towards paper and so cannot actually refrain from following through irrespective of what they may think in response to your note.
The point is to make sure that your final word of advice is totally confusing to the client, impossible to tell whether you think they should or shouldn't sign it, whether you think there's a big risk or a small one, or whether time is a crucial consideration or not.
All future claims totally defused.
Your buttocks are protected by a ring of titanium-clad steel with internal vibranium reinforcing struts.
Job done.
Now, excuse me while I get my secretary to put together an invoice.
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@crackers - you clearly haven’t read the case, understood the facts or applied them to the law, but feel in a position to criticise the judgment despite accepting there was a “wrong” to be addressed here. You then make a comment that the firm didn’t have the facts when the judge found they had sufficient information to be able to advise and then you introduce the amorphous concept of “commerciality” into a solicitor’s retainer with a non sophisticated private client. Bizarre reasoning.
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Everyone knows that Police, Local Government, Civil Services, Teachers and NHS pensions are gold plated, inflation proof and worth a fortune. But not this legal expert firm. Time for Robot lawyers to take over.
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We don't know the facts of the case or how the individual behaved or how the firm actually dealt with her.
In cases where a controlling relationship is at play, I'm sure - but could not quote stats - there are individuals who deem leaving with hardly any money and being able to cut off contact with a toxic former partner is better than a dragged out court case.
The comment section is a great example of how one person reads this as "OMG, how could the firm act like that!?" vs the next commenter "OMG, how could the judge act like that!?"
The truth is out there. somewhere.
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We know sufficient facts from the reported judgment that the Court held the firm to have been in a position to discharge its duty but that it didn’t.
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How do we know sufficient facts from the reported judgement that the Court held the firm to have been in a position to discharge its duty? Has the veracity of the purported judgement been made out?
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I've read the judgment. Looks like the client was dead set on settling as fast as possible to get out of there, but the firm could still have done more. It may not have made a difference to her decision because the advice would have inevitably delayed the settlement.
But they knew that he had a police pension and that he was going to get a big lump sum very soon so they could have just said that they would advise not to settle until full disclosure has been made rather than saying that they can't advise until full disclosure has been made.
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“Any reasonably competent solicitor would have advised the claimant that the proposed settlement order was obviously and exorbitantly one-sided in the husband’s favour, giving the claimant less than 15% of the disclosed matrimonial assets and leaving her with an inadequate financial provision in the future, and particularly in retirement," said the judge.
Coe said the client was not offered sufficient advice about the reasonableness of the settlement and had been required to sign a disclaimer that her solicitors were not able to advise. This was a ‘clear’ breach of duty, as the firm had enough information to advise, even if in general terms, held the court.”
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Hi Question Man,
https://caselaw.nationalarchives.gov.uk/ewhc/kb/2023/822
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Pretty awful. And yet another bully in the police force
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To the poster above asking what the facts are - you know you can read the judgment - it’s over 80 pages and followed days of evidence!!! Someone doesn’t understand how the English legal system works.
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@Anon - but how can you be sure that this was a case that the English courts had authority to judge?
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How can anyone gives a thumbs down to a link to the case itself???