The Duty to Advise – Analysis of Lewis v Cunningtons Solicitors  EWHC 822 (KB)
Published: 24/07/2023 06:22
There is little doubt from experience of general family finance practice that the frequency of solicitors’ use of client signed disclaimers has increased over the last decade. The form and practice of doing so is not consistent nor is it often preceded with a full understanding on either side of the legal standing or effect of what is being signed. Accordingly, the recent 50-page judgment in Lewis v Cunningtons Solicitors will be of particular interest for practitioners.
The claimant former wife (‘W’) maintained that in 2014 she had reached upon divorce an unfair financial settlement with her former husband (‘H’), which had omitted a pension sharing order where H’s police pension was the substantive capital resource. W now claimed damages for financial loss of c £500k for professional negligence against her former solicitors.
W and H lived together in 1991 and in 1993 married whereupon they moved into police accommodation. W left the marital home upon separation in 2012 after H had an affair with another woman.
W had already had an initial consultation (2012) with the defendant solicitors before separation and instructed them in 2013. The defendant solicitors’ written retainer recorded that H earned £47k pa gross and had a business interest involving website development and a high value private pension, whereby he was due to receive lump sums of £120k (2014), £67k (2017) and, thereafter, a further lump sum with a £22k pa gross annual pension. The same letter set out the various ways in which divorce financial disputes could be settled, both by Court led process and otherwise. The letter also recorded that H had offered W an overall full and final settlement in which she would receive just £2k for her interest in the furniture and contents. W was told the defendant could not advise she accept the offer ‘even without yet having sight of (H’s) disclosure’.
Some months later, W having made the enquiry, the defendant solicitors indicated W could agree a settlement directly with H, but should she do so then they would not be able to advise her or confirm whether the terms were fair and reasonable.
Settlement and Disclaimer
In 2014, W informed the defendant solicitors that she had reached a settlement with H, whereby W was on a clean break to receive £62k (later shown to be less £11.5k already paid by H) on the basis of W signing over a joint endowment policy to H already valued at over £15k and to mature at £31k in three years. The defendant solicitors responded that they could not advise W whether the settlement reached was fair or reasonable without financial disclosure and required W to sign a disclaimer that she had not been given advice as to financial matters because there had been no financial disclosure to enable the defendant to advise whether the same was fair and reasonable.
Notwithstanding this situation, the defendant solicitors acted for W in relation to obtaining the Consent Order prior to which there was an exchange of statements of financial information between the parties, which revealed H’s pension had a cv of over £540k resulting in his total capital resources of over £590k, whereas the defendant solicitors’ assessment of W’s capital asset value was a negative c(£4.5k). The draft Consent Order (as drawn otherwise than by the defendant solicitors) was then signed by W in July 2014 and the Order sealed in August 2014.
Some years later W came across an internet advert relating to potential claims in relation to unfair divorce settlements, as a result of which she instructed her present solicitors.
The extent of the defendant’s retainer was the core issue before the Court.
W maintained the settlement was obviously unfair and she should have been advised to apply for a pension sharing order (‘PSO’) and a Form P (pension enquiry form) sent out. W claimed the defendant solicitors had been negligent to say W could not be advised in the absence of full financial disclosure and when they knew W had minimal pension provision, whereas H was about to draw down on his. W maintained a Court would have awarded her a 50% PSO, whereas the settlement reached provided her with c 10% of the overall capital value she was entitled to. Further, W claimed the defendant solicitors, which they denied, should have been aware of W’s vulnerability to H, as she was intimidated by and in fear of him and that there had been bullying and the defendant was aware of call outs by the police to the marital home and the attempt to settle at a very low offer.
The defendant solicitors maintained W had been given advice that the starting point was 50/50 and a PSO could be considered and the proposed settlement was unlikely to be a good outcome. Hence, the settlement reached was without their involvement and without financial disclosure and, as W was informed they were unable to comment upon the settlement’s fairness or reasonableness, they had discharged their professional duty of care. Furthermore, W had specifically instructed the defendant solicitors not to pursue full financial disclosure and she had signed their disclaimer recognising she had not been given advice about any settlement merits and that she did not require full disclosure.
Further, the defendant solicitor’s claimed W was well aware of the asset disparity and H’s pension level and that after a long marriage there was a 50-50 starting point and a pension sharing order could be made. In the event, the defendant solicitors’ stance was their retainer was limited only to implementing the consent order which they had fulfilled and it was not their duty to tell W what to do. The defendant solicitors stated they had advised her to seek a PSO, but in reality W had set her mind on the settlement on offer and she had claimed she could not afford the pursue proceedings further – she bore some responsibility in these circumstances.
HHJ Coe KC, sitting as a High Court Judge, stated at the core of the claim was whether W could establish on the balance of probabilities that the defendant solicitors had breached the nature and extent of the duty of care they owed to her and that she had suffered consequential financial loss.
The applicable legal principles were agreed (see  to ). And were summarised as:
a. Minkin v Landsberg  1 WLR 1489 Jackson LJ:
'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.'
vi. as to principle v.:
'I am somewhat more cautious in my formulation of the principle There are many situations in which the client cannot afford to pay for all the relevant research and advice that the solicitor would be competent to provide. In those situations, the choice may be between a limited retainer or no retainer at all.'
b. See also Carradine Properties Ltd v DJ Freeman & Co. (A Firm)  Lloyd's Rep PN 483, Donaldson LJ as to scope of the contractual duty and duty to warn: 'the precise scope of that duty will depend inter alia upon the extent to which the client appears to need advice'. It also depends on 'the circumstances of the particular case' see Flenley & Leech on Solicitors' Negligence and Liability at section 2.32:
c. In Duncan v Cuelenaere, Beaubier, Walters, Kendall & Fisher  2 WLR 379 it was said the test of whether negligence had occurred would engage:
'various circumstances: the sophistication of the client; the experience and training of the solicitor; the form and nature of the client's instructions; the specificity of those instructions; the nature of the action or the legal assignment; the precautions one would expect a solicitor, acting prudently and competently, to take; the course of the proceeding or assignment; and the influence of other factors beyond the control of the client and the adviser.'
d. See also Pickersgill v Riley  PNLR 31 at  Lord Scott:
'It is a duty that it is not helpful to try to describe in the abstract. The scope of the duty may vary depending on the characteristics of the client, in so far as they are apparent to the solicitor. A youthful client, unversed in business affairs, might need explanation and advice from his solicitor before entering into a commercial transaction that it would be pointless, or even sometimes an impertinence, for the solicitor to offer to an obviously experienced businessman.'
e. Again, Minkin :
'The starting point in every case is to ascertain what the client engaged the solicitor to do or to advise upon.'
At  quoting from Midland Bank v Hett Stubbs & Kemp, Oliver J:
'The extent of his duties depends on 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 The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession '
f. See Credit Lyonnais v Russell Jones & Walker  EWHC 1310 (Ch) Laddie J:
'(normally) 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.e. 'a reasonably incidental' matter.
g. See Page v Kidd & Spoor Harper Solicitors  11 WLUK 294. – the solicitor's duty does not take away client autonomy.
h. As to contributory negligence in a professional negligence claim, see Jackson & Powell on Professional Liability section 11-348:
'Contributory negligence is rarely in issue between an unsophisticated lay client and his solicitor, and it will be unusual for there to be such a finding.'
Also see Feakins v Burstow  EWHC 2441 (QB), Jack J.
i. As to assessing the loss of a chance, Lord Evershed, MR in Kitchen v RAF Association  1 WLR 563, had stated a full recovery of damages is merited:
'if in a case of this kind it is plain that action could have been brought and if it had been brought it must have succeeded.'
See also Hanif v Middleweeks  Lloyd's Rep PN 920.
The court accepted W was an honest witness doing her best to recall the events and with the passage of time her recollection of certain aspects was incomplete and she had at an early stage mentioned the police pension to the defendant solicitors. W was an unsophisticated client who wanted advice as to what to do. Having been told a number of times that in the absence of financial disclosure the defendant solicitors could not advise her, it was not unreasonable for her to take that information at face value.
The court also accepted it would have been apparent to the defendant solicitors that W was vulnerable. They had been told she had been bullied and intimidated by H, the police had been called a number of times to their home and she felt under stress. These factors alone should have informed the defendant solicitors that the scope of their duty to her required that she be given clear advice and that they be assured she understood it. Her asking that the information should be withheld from H should have been a ‘red flag’ to the defendant solicitors.
The form of disclaimer adopted was:
'I confirm that I have been advised that there should be an exchange of full and frank financial disclosure before my solicitors can give me any advice in relation to suitable financial settlement options.
I have instructed my solicitor that I do not wish for there to be an exchange of full and frank financial disclosure and I accept that I have not been given any advice in relation to possible settlement options
I understand that I am going against my solicitor's advice and confirm that I wish to proceed in the absence of full financial disclosure.'
From those disclaimer terms, which the court found was inappropriately in a ‘one size fits all’ form, the court held, as the person she was, W was reasonably caused to believe not only that her solicitors could not advise her, but she could not ask them for any advice. The court did not accept W had specifically instructed the defendant solicitors not to seek any disclosure from H. The court concluded that as the pension in this case was by far the largest asset, it would have been almost a certainty on the case facts that a PSO would have been made and, therefore, W should have been advised ‘in the clearest possible terms that was the course she should pursue’. The defendant solicitor’s general reference to pension sharing orders in their original retainer letter was not enough.
The court found as to the scope of the defendant solicitor’s duty in this case that:
- The retainer letter was a divorce and financial matters general retainer and not a limited retainer and the same required appropriate advice to be given. Accordingly, the court rejected the submission that the defendant solicitors’ duty was limited to only implementing the settlement agreement reached between the parties. This aspect distinguished the facts of this case from those of the Minkin case above.
- Therefore, between first instruction and the request made of W to sign the disclaimer, which itself was triggered by the instruction (Nov 2013) to draft the consent order only, the defendant solicitors had owed W the broad and not limited duty to advise her appropriately on the financial matters, which also included advising W as to the unfairness of H’s offers made to that time.
- Accordingly, the defendant solicitors should have actively considered a PSO with W and served Form P and made it clear to W that she should expect a court to make on a 50/50 starting point. Full disclosure was not needed before such advice was to be given. Being a member of Resolution did not absolve the defendant solicitors from serving Form P.
- Further here, where the defendant solicitors were already aware of W’s position from their dealings to date, the defendant solicitors could not then simply rely upon the later W’s specific instructions dealing with a suggested agreement between her and H, to avoid their wider duty to advise on reasonably incidental matters (see the Credit Lyonnaise case above) to the drafting of the Consent order. Given that history, W should have had a comparison set out for her as to what she would receive under the proposed settlement and a court order and that she was missing out on an opportunity to recover several hundreds of thousands of pounds.
- A reasonably competent solicitor may not have been able to advise W in detail as to ‘every last pound’, but some positive advice was possible. W should have been advised that the proposed settlement was exorbitantly one-sided at less than 15% of the disclosed asset values and that the court would make a PSO with a 50/50 starting point and W should pursue such an order. By contrast and whilst the autonomy of the client was important, the defendant solicitors could and should by March 2014 have advised W in clearer and more robust terms. Instead, in breach of the defendant solicitors’ duty, W had been required to sign a disclaimer indicating they were not able to advise, which W had reasonably interpreted literally.
- By March 2014 and when the defendant solicitors were then in receipt of H’s statement of financial information indicating he held significant capital value, it was not enough that they had referred to a PSO as one of the possible orders the court could make, or to inform W of pension share orders, or that the level of H’s offers was unlikely to be fair – W needed clear advice on what she could reasonably hope to achieve. In contrast, the defendant solicitors’ stance was tantamount to maintaining W had a responsibility to advise herself.
- By August 2014, underlining the defendant solicitors’ breach of duty and negligent handling of W’s case, they wrote to W confirming they had sent off the eventual Consent order but commenting the agreement was unfair, despite having maintained throughout they could not advise W as to the fairness of the offers made.
Accordingly, that negligence and breach of duty were causative of W not claiming before the court a 50/50 pension share from H and instead of agreeing to much lesser terms of settlement as set out in the Consent order. The court rejected the defendant solicitors’ contention that H may not have offered an equal pension share on the basis that as H was also legally advised the circumstances were such that it was likely there would have been a 50/50 pension share starting point.
It was an ‘almost certainty’ that a 50/50 PSO would have been made had this matter proceeded to the court’s adjudication on W’s financial remedy application. There may, however, in that situation have been a close offer to settle by H before going to a hearing. On the basis W would after costs have recovered by going to court £499,600 (based on an equality of pension capital value approach) W would have been likely to have accepted an offer of £400,000 (i.e. 80% of her identified net claim), and therefore the appropriate damages award would be £400,000.
In the absence of an effective limited retainer, a finding of contributory negligence was inappropriate in a professional negligence claim. That position was not affected by the defendant solicitors claimed ‘low costs’ representation of W in this matter, which status did not lower their standard of care when carrying out the work for W within the remit of their retainer.
In Minkin’s case, the Court of Appeal found that the defendant solicitors had, contrary to the present case, acted under a limited retainer. King LJ had stated:
'In order to address this problem a number of solicitors specialising in matrimonial finance cases now offer (as they have in personal injury cases for some time), bespoke or "unpacked" services whereby they will undertake to act for a litigant in person in relation to a discrete part of a case which is particularly challenging to a lay person. Most commonly in matrimonial finance cases, this is the drafting of the Form E or, as here, the drafting of the order. This service is invaluable to both courts and litigants alike, saving as it does court time but also stemming the increasing number of applications to the courts in relation to the working out of orders which do not accurately reflect the true intentions of one or other of the parties.
There would be very serious consequences for both the courts and litigants in person generally, if solicitors were put in a position that they felt unable to accept instructions to act on a limited retainer basis for fear that what they anticipated to be a modest and relatively inexpensive drafting exercise of a document (albeit complex to a lay person) may lead to them having imposed upon them a far broader duty of care requiring them to consider, and take it upon themselves to advise on aspects of the case far beyond that which they believed themselves to have been instructed.
It goes without saying that where a solicitor acts upon a limited retainer, the supporting client care letters, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client's specific instructions. It may well be with further passage of time, tried and tested formulas will be devised and used routinely by practitioners providing such a limited retainer service. In the present case the defendant, as identified by Jackson LJ, did not observe best practice having failed to set out with precision the limits of the retainer in the client care letter. Notwithstanding that error, I too am entirely satisfied that the defendant was acting under a limited retainer and carried out the work which the claimant had instructed her to undertake.'
In the present case, HHJ Coe KC, accepted, that had the defendant solicitors advised W appropriately, then, had W gone ahead with the proposed settlement, 'requiring her to sign the disclaimer (perhaps in terms which reflected the individual case circumstances) would have been perfectly appropriate'. The distinction being in the present case that the stage had never been reached on the facts as found by the court where the wider responsibilities of the defendant solicitors to W under the wider initial retainer had been superseded by the more limited retainer canvassed on their behalf. W’s previous dealings with the defendant solicitors meant the information they had did not entitle them to avoid advising her as to the fairness of what H was proposing or to attempt to limit their duty to her in reliance upon the general form of disclaimer they had required her to sign.
Clearly, a ‘one size fits all’ disclaimer is inappropriate, and care must be taken in each case both with any disclaimer contents identifying the circumstances giving rise to the same and, indeed, in the initial retainer letter to encapsulate the client’s instructions.
The greater tendency, presently, to accept what are termed as ‘unpacked’ instructions, must not mislead practitioners to believe that the professional duty of care owed to a client is within the instructions given any lower as a result than as stated in Minkin’s case, as above.