Duty of legal representatives to inform their clients of pending appellate court decisions

20/11/2008

The High Court has ruled on the measures that barristers and solicitors must take to keep their clients informed of pending appellate court judgments which could materially affect the outcome of the client's case.

The barrister and firm of solicitors in question were acting for and advising the Claimant, Mrs W, during divorce proceedings. The total value of the husband's estate was several million pounds. A settlement was reached, upon which the legal representatives had advised, while the case of [i]White v. White (2001) 1 AC 596 HL was still being decided by the House of Lords. This seminal case would have significantly altered the basis upon which Mrs W could have been able to calculate her entitlement in the settlement. Her barrister, Mr F, was aware that this case was pending but the Court found that he did not inform her of it, or of its possible implications on her case.

The Judge found that Mr F was negligent in not advising Mrs W that this case was pending and of the possible advantages of delaying the negotiations and settlement until it had been decided. It was not the advice given by Mr F which was negligent, but rather the failure to put all of the facts, in this case the pending decision of White v. White, before Mrs W in order that she can make her own informed decision as to when she effected the settlement.

Mr Justice Field said that "Mr F's failure so to advise Mrs W was negligent: it was not a mere error of judgment...His duty was to go through the pros and cons of suspending the negotiations and then to leave the final decision to Mrs W".

Mrs W's solicitors were not found to be negligent because the Court found no obligation on them to operate a system that alerted them to any appellate court judgment concerning family law. The solicitors were also entitled to rely on counsel's advice, as they had done.

Despite the Court's finding of negligence against Mrs W's counsel, her claim was ultimately defeated because she was unable to prove that she had suffered any loss. It was found that she would have likely to have wanted a quick settlement, even if she had known of White. Mrs W's failure to ingratiate herself to the Court in these proceedings is likely to have been a significant factor in her inability to prove she suffered any loss. The Judge concluded: "I am obliged to record that I found Mrs W to be a profoundly unreliable witness. Her evidence was often self-serving, evasive and, on occasion, knowingly untruthful", and later that: "Such was the unreliability of Mrs W's evidence that I decline to accept any part of it unless it is corroborated by contemporaneous documents or by the evidence given by the other factual witnesses".

(Carol Christine Williams v (1) Thompson Leatherdale (2) Nicholas Francis QC [2008] EWHC 2574 (QB))

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