The case of Mrs Minkin has served to clarify the position to clients and solicitors who use “unbundled” arrangements to engage and conduct legal work.
Mrs Minkin instructed a second firm of solicitors after dis-instructing her earlier firm, whose advice to her had been that the settlement she was considering was likely to be less that she could achieve at trial.
She instructed the second set of solicitors without informing them of the advice she had received. She instructed them specifically to draw up a settlement that would be likely to be approved by the court in order to achieve finality and enforcability in the financial settlement between herself and her husband.
The second firm of solicitors, Barnett Family Law, conducted that work and the order was approved by the court. Unfortunately Mr and Mrs Minkin then experienced a great deal of difficulties in relation to the enforcement of the order and eventually Mrs Minkin sought a negligence claim against the second firm of solicitors for failing to provide advice leading up to the drafting and approval of the consent order. Mrs Minkin claimed that if the solicitors had given her competent advice, she would not have entered into the consent order in April 2009. She said that she would have obtained a much more favourable outcome of her claim in court proceedings.
In the first instance her claim was dismissed and so she brought her case to the Court of Appeal.
The Court of Appeal last week handed down its judgment confirming that the solicitors had received very limited instructions from Mrs Minkin to deal with a very discreet aspect of the process, namely to draw up a consent order setting out the terms of agreement in a way that the court would be inclined to approve. The solicitors were not instructed to provide advice to Mrs Minkin on the overall settlement.
The court recognised that the implications of this were far-reaching now that legal aid is no longer available for most divorce and financial matters. As a result many couples reach their agreement in person and use solicitors for the specific work involved in drawing up settlement as an enforceable draft order for the court to approve.
Many firms including us at Townsend Family Law Solicitors offer what the court referred to as “unbundled” legal services, enabling clients to access legal expertise for the aspects of their settlement which they cannot manage themselves not having sufficient legal expertise.
It is crucial therefore that both for solicitor and client are absolutely clear as to the extent of legal advice and assistance sought and provided. Both solicitor and client should be clear on what is required of the solicitor, and what in the circumstances is not expected of the solicitor. In this way necessary and specialised legal service are available to separating couples in a manner tailored to their needs and budget and advice can be sought in relation to limited and specific matters.
As Lady Justice King said in her Judgment, “it may be thought that an agreement having been reached, the subsequent drafting of the order is a simple enough task – after all, it might be asked, how hard can it be to write down what has been agreed? The answer is “Very hard”. A consent order in financial remedy cases is a complex legal document which must deal with all aspects of the parties’ financial lives now and for the future”.
If you want to speak to Melanie or Tanya in confidence, call us on 01992 892214