The recent case of Minkin v Landsberg (Practising as Barnet Family Law)  EWCA Civ 1152 recognises the inevitability of family practitioners providing ‘unbundled’ and bespoke services in the wake of legal aid cuts.
Mr & Mrs Minkin separated in 2007 although remained living under the same roof. Mr Minkin was a financial advisor and his wife was an accountant. During the next year or so they negotiated a financial settlement without solicitor involvement.
In early 2009 an agreement was reached and was recorded in a document headed "Minutes of Agreement to Consent Order", which was drafted by one of the parties without a solicitor.
It outlined the following:
However shortly after the document was drawn up, the wife had second thoughts and sought advice from Tilley & Co.
Tilley & Co wrote to the wife in February 2009, setting out terms upon which they were willing to act;"On a preliminary review of the settlement proposals it does not seem to be a satisfactory offer but would need further disclosure to back this advice up. I advised you that if you felt comfortable with the offer and felt that it was a good deal then you could of course accept it. However, the other options available to you are:
The husband was not happy with the wife's actions. A letter was sent by Tilley & Co to Tynan Solicitors (who were acting for the husband) saying that "the wife had signed the Agreement under duress, [and that] she was withdrawing her consent and requesting the court be notified immediately".
Despite this, a consent order was lodged with Barnet County Court and at a hearing in March 2009. DDJ Maunder refused to approve the consent order, seeking clarification of the amount of debts to be repaid from the sale proceeds of the family home, and adjourned matters to a hearing on 7 April 2009.
Following the hearing, the wife approached a different solicitor from Barnet Family Law, and requested that they amend the order and put into the correct format for the court to approve. Barnet Family Law confirmed the instructions in writing, which were in turn confirmed by the wife, who said:
"I know the risks for maintenance if Gary is overseas but I don’t think he will agree to capitalise my maintenance and I just want to bring this all to an end as swiftly as possible."
Barnet Family Law corresponded with Tynan Solicitors and the revised document was submitted to the court. Tilley & Co, who had finished acting for the wife, sent their file to Barnet Family Law. This arrived on 6 April 2009, after the revised document was sent to court.
On 7 April 2009, the husband and wife attended Barnet County Court without solicitors and the court approved the consent order.
Subsequently there were further problems between the husband and wife and litigation ensued. The wife blamed Barnet Family Law and commenced proceedings for damages for professional negligence against Lesley Landsberg, practising as Barnet Family Law.
The main thrust of the wife's argument was that Ms Landsberg was negligent in the advice provided prior to the order being made. The wife thought that she would have had a better settlement if she had not agreed to the order. She further alleged that Ms Landsberg's conduct of subsequent litigation was poor, as costs orders were made against the wife.
The central issue to the case was the scope of the retainer. Ms Landsberg's case was that it was strictly limited to simply redrafting the order.
After a four day trial, the District Judge dismissed the wife's claims on the following points:
The wife was not happy with the decision of the District Judge. She appealed to the Court of Appeal on the basis that the retainer was not limited to the extent held and that Ms Landsberg was under a duty to give broader advice, which she did not perform.
The Court of Appeal examined the evidence and dismissed the wife's appeal. Lord Justice Jackson confirmed that the defendant had been acting upon the basis of a limited retainer and was under no duty to give broader advice or warnings.
Lady Justice King agreed but emphasised to practitioners that now legal aid has been removed from financial remedy cases, individuals will expect and want solicitors to draw up agreements reflecting their wishes or other bespoke pieces of work. She recognised that this was invaluable for the smooth running of the court system and it would be detrimental to litigants in person and the courts if solicitors were not able to undertake such work for fear of being sued.
But King LJ highlighted that where a solicitor acts upon a limited retainer the supporting client care letter, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client's specific instructions.
TLT’s Family team continue to offer both a full service to clients and where appropriate an unbundled service to suit a client's requirements. Such requirements are always discussed and agreed in advance. Many clients are able to manage their own cases but prefer to have a legal advisor to hand if needs be.
For those requiring advice and assistance regarding a family matter please contact Mark Sage on +44 (0)333 006 0847 or mark.sage@TLTsolicitors.com.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com