Sharon Minkin v Lesley Landsberg (practising as Barnet Family Law) [2015] EWCA Civ 1152This case considered the significance of details contained within a retainer agreed with the client, particularly
Sharon Minkin v Lesley Landsberg (practising as Barnet Family Law) [2015] EWCA Civ 1152
This case considered the significance of details contained within a retainer agreed with the client, particularly when the agreement is made on the basis of 'unbundled representation'. Unbundled representation is essentially used to describe discrete acts of legal assistance (civil law) under a limited retainer rather than all issues concerning a matter from start to finish.
The claimant appealed against the decision to dismiss her claim of professional negligence against her solicitor who had been instructed for part of the issues connected with her divorce proceedings. The background related to the claimant and her then husband making a decision to divorce which led to them entering into discussions about their financial position. They reached an agreement regarding the division of assets and future financial arrangements and this was drafted into a consent order. This draft order was eventually presented to the court; however the District Judge refused to approve the order on the basis of the way it had been drafted. The parties were asked to set out further details before it could be reconsidered.
At this stage the claimant instructed the defendant solicitors to ensure that the consent order was drafted sufficiently, to get it approved in court. The defendant agreed to assist under the 'legal help scheme' which covered one meeting and a modest amount of work. The claimant accepted this arrangement and confirmed that she had understood the basis of the instructions.
The consent order was redrafted to cover all the relevant points clearly and was filed at court. This was approved and a formal order was made on the terms agreed. Following this, there were a number of problems between the parties and the claimant regretted entering into the consent order. The claimant sought to attribute blame to the defendant solicitor for her advice/lack of advice which she claimed had resulted in the order.
One of the key issues explored within these proceedings was the scope of the defendant's retainer. The defendant argued that it was strictly limited to specific work which had been agreed at the outset, namely to complete the draft order so that it reflected what had already been agreed. The defendant maintained that she had not been instructed to advise on the contents or merits of the agreement which had already been reached. The defendant added that the claimant had not requested advice on the settlement at any stage and in any event she was not provided with the relevant material to advise on the financial position.
The District Judge dismissed the claim at the Central London County Court trial on 7 November 2014 and agreed that the defendant had acted under a limited retainer, to embody the matters agreed in the consent order for the courts approval. The Judge concluded that the retainer did not extend to advising on the terms of the agreement or any broader responsibilities. However, the claimant appealed the decision and the central issue was the extent of the solicitor's duty to advise in the circumstances.
The case appeared before the Court of Appeal on 13 October with the judgement handed down on 17 November 2015. The Court rejected the appeal, holding that the claimant had already obtained legal advice about the merits of the settlement reached from the previous solicitors involved and had been advised of the alternative options of negotiation, mediation and litigation. The fact that the defendant had failed to expressly confirm that limited nature of her retainer within the correspondence to the claimant was considered to be contrary to good practice but based on the evidence, the limited nature of the instructions was accepted. The broader work which formed part of the basis for the claim was not considered to be reasonably incidental to the terms agreed under the retainer. The decision was upheld.
This case demonstrates the risks associated with unbundling services, especially allegations of professional negligence. All Solicitors owe a duty of care to their client and setting out clear terms within the retainer is a key part of this work. It may well be an attractive option to clients where they are no longer eligible for legal aid but cannot afford to instruct a solicitor privately on a traditional basis. However, it clearly is not without its issues and should be carefully considered at the outset.
This case considered the significance of details contained within a retainer agreed with the client, particularly when the agreement is made on the basis of 'unbundled representation'. Unbundled representation is essentially used to describe discrete acts of legal assistance (civil law) under a limited retainer rather than all issues concerning a matter from start to finish.
The claimant appealed against the decision to dismiss her claim of professional negligence against her solicitor who had been instructed for part of the issues connected with her divorce proceedings. The background related to the claimant and her then husband making a decision to divorce which led to them entering into discussions about their financial position. They reached an agreement regarding the division of assets and future financial arrangements and this was drafted into a consent order. This draft order was eventually presented to the court; however the District Judge refused to approve the order on the basis of the way it had been drafted. The parties were asked to set out further details before it could be reconsidered.
At this stage the claimant instructed the defendant solicitors to ensure that the consent order was drafted sufficiently, to get it approved in court. The defendant agreed to assist under the 'legal help scheme' which covered one meeting and a modest amount of work. The claimant accepted this arrangement and confirmed that she had understood the basis of the instructions.
The consent order was redrafted to cover all the relevant points clearly and was filed at court. This was approved and a formal order was made on the terms agreed. Following this, there were a number of problems between the parties and the claimant regretted entering into the consent order. The claimant sought to attribute blame to the defendant solicitor for her advice/lack of advice which she claimed had resulted in the order.
One of the key issues explored within these proceedings was the scope of the defendant's retainer. The defendant argued that it was strictly limited to specific work which had been agreed at the outset, namely to complete the draft order so that it reflected what had already been agreed. The defendant maintained that she had not been instructed to advise on the contents or merits of the agreement which had already been reached. The defendant added that the claimant had not requested advice on the settlement at any stage and in any event she was not provided with the relevant material to advise on the financial position.
The District Judge dismissed the claim at the Central London County Court trial on 7 November 2014 and agreed that the defendant had acted under a limited retainer, to embody the matters agreed in the consent order for the courts approval. The Judge concluded that the retainer did not extend to advising on the terms of the agreement or any broader responsibilities. However, the claimant appealed the decision and the central issue was the extent of the solicitor's duty to advise in the circumstances.
The case appeared before the Court of Appeal on 13 October with the judgement handed down on 17 November 2015. The Court rejected the appeal, holding that the claimant had already obtained legal advice about the merits of the settlement reached from the previous solicitors involved and had been advised of the alternative options of negotiation, mediation and litigation. The fact that the defendant had failed to expressly confirm that limited nature of her retainer within the correspondence to the claimant was considered to be contrary to good practice but based on the evidence, the limited nature of the instructions was accepted. The broader work which formed part of the basis for the claim was not considered to be reasonably incidental to the terms agreed under the retainer. The decision was upheld.
This case demonstrates the risks associated with unbundling services, especially allegations of professional negligence. All Solicitors owe a duty of care to their client and setting out clear terms within the retainer is a key part of this work. It may well be an attractive option to clients where they are no longer eligible for legal aid but cannot afford to instruct a solicitor privately on a traditional basis. However, it clearly is not without its issues and should be carefully considered at the outset.