Wednesday, 21 December 2011

Padden v. Bevan Ashford solicitors – the end of the free half hour?


If you feel so inclined, you can read what happened when a young solicitor saw a client who called into her office off the street, asking for urgent advice. It's reported here:- http://www.bailii.org/ew/cases/EWCA/Civ/2011/1616.html.

What it's all about

This is a sad tale of a lady who discovered that her husband was a fraudster, it turned out to the tune of £2m or so, when his solicitor turned up at the family home demanding that she sign over all her share of the family assets to prevent the children from seeing their father carted off to prison. A couple of days later, she received in the post documents which would achieve this. She tried to find a solicitor who would advise her on the documents, that same day, but the first two solicitors, one could say hard heartedly, turned her away on the ground that the transactions were simply to substantial. They weren't prepared to take the risk.

A third solicitor, recently qualified, agreed to see her, presumably given her evident distress. In a very short meeting, this solicitor advised the client in plain terms not to execute the documents. When the client said that she would have to, the solicitor commented, I assume rather drily, that she hoped that the husband was worth it. There was no charge by the solicitor for this meeting or any other work which they did later.

Now various other things happened afterwards and the documents were indeed executed and the assets lost. Despite this, the husband did indeed get imprisoned and the parties did divorce. The wife then sued the solicitors for failing properly to advise her. At first instance, the circuit judge took the bold (to adopt "Yes Minister" terminology) step of dismissing the claim after the Claimant had given evidence. His reasoning is not set out in the appeal judgment but is summarised as being that the Claimant had not established her claim. And so it ended up in the hands of the Court of Appeal.

The Court of Appeal's judgment on the solicitors

For various reasons, the appeal was allowed. Although it was not solely dependent on the events of the first meeting, it is the criticisms of the first meeting which give me cause for concern. It may sound like sour grapes, but I do find the pontifications of judges who have never tried to provide a high street legal advice service and earn a living at it a tad irritating. They decided that the clear advice not to proceed with executing the documents was insufficient. "A solicitor, properly advising her about the proposed transaction, should have told her of the importance of finding out all the relevant facts, before she executed the four documents," they thought.

And also, "if, as was the case on 28 March, the claimant indicated that she had insufficient time to be properly advised, the proper course for a solicitor would have been to explain to the claimant that she needed full advice about the course she was proposing to take, coupled with some investigation as to the facts. She should have been told in clear terms that a hurried short meeting was simply inappropriate, bearing in mind the importance, riskiness and probable pointlessness of the transaction she was about to enter into, the inadequacy of the information available at the moment, and her inevitably upset and emotional state, coupled with the pressure being put on her. The Judge seemed to think that it was for the claimant to ask for such a further meeting, but it seems to me that a solicitor who, at least according to the 1 April letter, had given the claimant 'independent legal advice' should have explored and tested her reasons for entering into the transaction, or at least advised her as to the importance of doing so."

The solicitor's dilemma

So if the client says she is in a hurry, you still have to insist on a further, lengthier meeting, which doubtless should be charged for, which the client may or may not agree to. The real complaint seems to have been that it was pretty obvious that there was a good chance that the husband would go to prison regardless of whether or not the assets got handed over. No allowance was made for the fact that this was a very short meeting, constrained by the client needing to get back home for her children. No allowance was made for the fact that the advice was free. Surely the test should not be whether the advice was comprehensive but whether it was sufficient? The solicitor rightly said that the client should not sign the documents. Maybe full reasoning and an exhaustive explanation for that advice was not given, so what? The advice was impeccable. The client may have rejected it, for bad reasons, but why should the client be excused responsibility for her bad decision? The fact is that the client got advice for nothing and, had she followed that advice, she would have been a lot better off financially. She chose not to. As an adult of full capacity, she has that right but why does the solicitor attract criticism for not providing a comprehensive service, presumably also for nothing?

The half hour free is not worth it

To be honest, this is the only rational conclusion. If a solicitor devotes a modest and proportionate part of his/her resources to providing free advice, it simply becomes a rod to beat him/her with. No reward is generated and his insurer runs the risk of an expensive hit. Why bother? Perhaps the only way this can continue is if each free interview starts with a disclaimer of liability, except that this would doubtless fall foul of something. At a time when legal aid is contracting still further, disincentives to provide pro bono advice are really not needed.

4 comments:

  1. Ian Downing (family solicitor)25 January 2012 at 02:41

    Brevity - the soul of judicial discretion, Judges being able in any event to keep us sitting listening for as long as they deem necessary, but negligence if you are a solicitor trying to give some free advice to a harassed member of the public in a hurry. Hmm...

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  2. This decision is outrageous. It is surely wrong, too.

    How do you reconcile it with the ratio in White v Paul Davidson & Taylor [2004] EWCA Civ 1511? That case was decided on the basis that although "the claimant's advice had been correct, but it had not gone far enough" (i.e. it was negligent), nevertheless because "the judge found as a fact that had the defendant been given all the advice he had been entitled to expect, he would have ignored it", it followed that "he could not prove that he had suffered any damage as a result of the negligent advice". In other words, the case fails on causation.

    This is confirmed in Accident Assistance Ltd v Hammonds Suddards Edge[2005] EWHC 202 (Ch), which turned on whether the solicitor should have realised the client did not understand counsel's advice and expalined it. The concession that it is for the claimant to prove he would have acted on the advice, if it had been given, was held to be correct.

    See also Boateng v Hughmans (a firm)[2002] EWCA Civ 593.

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  3. I drafted the documents she was made to sign and I wouldn't have advised her to sign them either!

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