[2008] EWHC 2574 (QB)

On 26 October 2000 the House of Lords handed down their judgment in White v White. The effect of this decision was that in “big money cases” where the value of the available assets exceeds the parties’ financial needs, a claimant wife may well be entitled to a sum that exceeds her financial needs. The decision had been eagerly awaited by family lawyers and it was known that there was a real possibility that the law would change in favour of applicant wives.

Mrs Williams was negotiating a divorce settlement in the summer of 2000 and concluded a settlement on 9 August 2000. The court made a consent order on 7 November, after the judgments in White were handed down. This was a big money case, given that the total value of the joint assets was £4,582,730, and Mr Williams’ pension was worth £2,448,733. However, neither Mrs Williams’ solicitors nor counsel advised her that the House of Lords was going to be making a decision which could change the law in her favour. She sued them for negligence, claiming that she would have postponed the settlement of her claim until after the decision in White had she been properly advised.

Claim against counsel

The judge held that counsel, Mr Francis, was under a duty on 9 August 2000 to explain to Mrs Williams the potential implications of White so that she had the opportunity of deciding whether to suspend negotiations to await the decision in the House of Lords. His failure to do so was negligent and was not a mere error of judgement. He should have advised her that there was a real possibility that the decision in White would benefit her and she should weigh this upside against the downside in abandoning the negotiations. He was not under a duty to go further and to advise her that she ought to suspend the negotiations.

Although a breach of duty was made out, the claim against counsel failed on causation. If Mrs Williams had been advised as she should have been, she would not have postponed the negotiations but would have been happy to conclude the settlement agreement she concluded on 9 August 2000.

Claim against the solicitors

Mrs Williams contended that the two solicitors acting for her at Thompson Leatherdale should have withdrawn the application for a consent order which was made on 7 November 2000 and advised her on White, or should have instructed Mr Francis to advise on White.

The judge held that the solicitors were entitled to rely on Mr Francis’ advice on Mrs Williams’ claim given on 3 March and 9 August 2000 and on neither occasion did he alert Mrs Williams or Thompson Leatherdale to White. He also held that they were under no obligation to operate a system to alert them to any appellate judgement concerned with family law.

If the solicitors had been aware of the decision before 7 November 2000, they had a duty to seek the advice of Mr Francis but were not obliged themselves to advise Mrs Williams on the implications of White or to seek the withdrawal of the consent order application without first having sought Mr Francis’ advice. On the facts, however, this duty did not arise since one solicitor was on holiday and the other off sick so that neither was aware of White before the consent order was made.

The judge dismissed the claim in negligence against the solicitors but even if he had not done so, Mrs Williams’ claim would have failed on causation. If, after the decision in White, Mrs Williams had been advised by Mr Francis about its effect, she would have stayed with the terms of the settlement agreement.

Comment: this case illustrates the extent to which the courts will permit solicitors to hide behind counsel when negligence is alleged against both. Here two partners at Thompson Leatherdale were acting for the claimant - the senior partner, Mr John Thompson, who did little divorce work, and Mr Martin Lambert, who had a reasonable amount of experience in handling divorce cases.

Despite the fact that the anticipated decision in White, which had been argued and judgment reserved in July 2000, was accepted to have been common knowledge among family lawyers (see the judgment in S v S), the judge did not criticise the partners for their ignorance and rejected the suggestion that they should have had a system in place to alert them to appellate judgements concerned with family law.

On a related note, there is a duty on a party’s legal advisers (but presumably primarily on counsel) to advise the court of a relevant appellate decision handed down whilst they are considering a draft judgment (Uphill v BRB (Residuary) Ltd).