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Stephen Baker
Stephen Baker,
DIRECTOR
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What constitutes a breach of solicitor duty?
24 July 2012

The Court of Appeal has given a claimant another chance to prove its claim for professional negligence by ordering a retrial after warning that the trial judge was wrong to find that the solicitors were not in breach of duty after hearing just the claimant’s evidence at the initial trial.

In the case of Padden –v- Bevan Ashford, Mrs Padden (“P”) lost her family home after agreeing to charges over assets in respect of her husband’s liabilities for dishonest wrongdoing with regard to client money in his employment as a financial consultant. P was told by her husband and his solicitor that he had got himself into trouble by taking client money and that the only way he could avoid a criminal prosecution and their three children seeing their father go to prison was if she agreed to sell joint assets. The husband’s solicitor explained that she should get independent legal advice but that this was “for the sake of formality” and that she should “ignore any advice that she might be given not to sign”.

P attended one of the offices of Bevan Ashford (“B”) where she saw a young solicitor who in the limited timeframe available, because P wanted to get back to her children, advised that she should not sign the documents. P made it clear that she was going to proceed, not for the sake of her husband particularly but for the sake of the children as paying back the client was the only way he might avoid going to prison. The original trial judge thought that it was absurd to foist a duty of care on the solicitor to give full advice to someone they have agreed to see off the street in a limited time period and with no appointment. The judge felt that whereas the solicitor from B would have assumed some responsibility to advise it was discharged by telling P not to sign away her rights.

P ignoring the original advice then attended a different branch of B for the signing of the documents charging her share of the joint assets to the client the husband had ripped off. At that second meeting the solicitor from B not only witnessed the documents signed by P but gave a certificate to the effect that appropriate advice had been given and that B was not acting under any undue influence.

The Court of Appeal judges felt that the trial judge was wrong to find that the claimant failed because there was no case to answer and to say that P would have acted no differently if she had been properly advised. Such advice if properly given should have included:-

  1. Exploring the extent of the husband’s wrongdoing such that the transaction proposed would have the desired effect of keeping him out of prison. As it happened the husband’s wrongdoing had gone far beyond what he initially told the wife and so in reality there was little chance of avoiding a criminal prosecution even by entering into the deal.

  2. Advising that there was insufficient time for the meeting bearing in mind what was at stake and suggesting that a full meeting should be arranged to go through matters in more detail.

  3. Exploring the extent of the pressure P was being put under by the husband. It should be noted that at the second meeting where the solicitor witnessed the signatures and confirmed that the wife had been appropriately advised the husband was in attendance as well as the wife.

The Court of Appeal judges allowed P’s appeal and ordered a retrial in front of a different judge whilst making it clear that the new judge was free to make any findings of fact on the evidence after hearing all the witnesses. Whether P will be ultimately successful we are not in a position to know. However, in situations where there is the potential for undue influence a solicitor may be negligent if he or she does not properly discharge their duty to a client who is likely to be under pressure to agree something that may not be in the clients interest.

For more information about the issues in this article to find out more about how the Dispute Resolution team can help you please contact Stephen Baker on 0118 952 7206 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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