HHJ Coe KC. Successful negligence claim in relation to pensions advice on divorce.

The Claimant, after receiving some advice from the Defendants, but in the absence of full disclosure, entered into direct discussions with her husband and then instructed the Defendants to draft a consent order. It did not include a pension share when the pension was the main asset, and very valuable.

The Claimant asserted that the Defendant was negligent and wrong to say that in the absence of full disclosure it could not advise her. The police pension had been identified early on as being valuable (it turned out to have a cetv of £540,712.60), the husband was about to draw it down, and that the Claimant herself had minimal pension provision. The Claimant also argued that she was depressed and vulnerable and had been put under pressure by the husband, who was attempting to settle for a very low sum, and the Defendant knew this. She wanted the solicitors to tell her what to do, but they said without disclosure they said they could not advise. She was not aware of the processes that would compel disclosure or contribute to her living expenses or legal costs.

The Defendant responded that the Claimant had agreed the deal directly in the absence of financial disclosure and it did not therefore owe a her a duty, but if there was such a duty then they had discharged it by advising her of a 50-50 starting point for matrimonial assets, that a pension share could be considered, and that the proposed settlement was unlikely to be a good deal. The Defendant also asserted that they had advised that an application could be made to compel disclosure. The Claimant had signed a disclaimer acknowledging that she had not been given advice about a settlement and did not want there to be full and frank disclosure. The Claimant said that she felt that she had no alternative but to sign it, and her husband was telling her that his offer was the best that she would get, and she thought that once she had signed the consent order and it was being sent to court there was no way of halting the process.

Held:

Client autonomy does not remove the need for appropriate advice. If, ‘in the course of doing for that which he is retained, [a solicitor] becomes aware of a risk or potential risk to the client, it is his duty to inform the client’ and this is not going beyond the retainer (Credit Lyonnais v Russell, Jones & Walker [2002] EWHC 1310 (Ch). This also applies to any reasonably incidental matter, and what is reasonably incidental depends upon ‘all the circumstances of the case, including the character and experience of the client’ (Minkin v Landsberg [2016] 1 WLR 1489 (CA)). Accordingly, the scope of the duty is variable.

The Claimant was manifestly vulnerable and unsophisticated; when told that the Defendant could not advise her, she understandably interpreted this as saying that she could not ask for advice. The Claimant knowing details about the husband’s finances is not the same as having a sufficient understanding of their consequences in terms of financial remedy. In contrast, the Defendant did have enough information to advise at least by the time of the draft consent order. Merely saying that a pension sharing order was possible was inadequate as ‘with a 23 year relationship and no property ownership and given that the husband’s pension was by far and away the largest asset, a court would almost as a certainty have made a pension sharing order and the inevitable starting point and probably finishing point would have been equal division of the pension fund. The likelihood was so strong that the Claimant should have been advised in the clearest possible terms that that was the course she should pursue.’ [197]. The scope of the Defendant’s duty was to advise the Claimant that if she agreed to the husband’s proposal she would receive a net benefit of about £30k, but if she pursued a matter to court a pension sharing order would almost certainly be made, and it would be likely to be for about £500,000. Minkin distinguished (retainer different, client much more sophisticated).

Awarded £400,000 (being a reasonable figure for her to settle on if H had offered this). No deduction for loss of chance in view of the fact that the pension was the only really substantial matrimonial asset and this was a long marriage; and no deduction for contributory negligence as client not well placed to spot or correct professional’s mistake: Jackson & Powell on Professional Liability at section 11-348.