Williams v Fairbairn & Ors

A perfected consent order is not void merely because it is based on minutes, lacks a liberty to apply provision, or is not signed by every person whose agreement is recorded in it. A claim in tort against legal counsel requires an arguable duty of care, breach, causation and recoverable loss. Counsel ordinarily owes no duty of care to the opposing party’s client, absent exceptional circumstances. A claim against a party’s own counsel may be arguable where an error in drafting or approving an order could cause recoverable loss, but it cannot succeed without proof of actual loss.

The claimant brought damages claims against his former wife’s counsel and his own counsel arising from a consent order made in ancillary relief proceedings. He alleged that the order departed from heads of agreement and contained an erroneous provision making him responsible for mortgage payments. He also challenged the order’s validity because of its form and the absence of signatures.

The first and second defendants applied for strike-out or summary judgment. The central issues were whether the consent order was void, whether either counsel owed the claimant a relevant duty of care, and whether he had suffered recoverable loss.

1. The court dispensed with formal service of the application notices under Civil Procedure Rules 1998, Part 6.9(1), because the claimant had received unsealed copies, knew of the applications and waived service.

2. The procedure followed in making the consent order was an ordinary one and accorded with Xydhias v Xydhias [1999] FLR 683. The parties were not required to sign the final minute of order. The description of the document as minutes did not prevent it becoming a perfected order. The absence of a liberty to apply provision did not make either the heads of agreement or the order void.

3. The failure of the claimant’s mother to sign the consent order was a formal drafting deficiency, but it did not invalidate the perfected order where the order recorded her prior agreement.

4. The claim against the first defendant, who had acted as the claimant’s counsel, was capable in principle of raising an arguable duty of care. Failing to notice the mistaken reference in recital 9 could arguably amount to breach, and the cost of a corrective application under the slip rule in Part 40.12(1) could in principle have been recoverable loss. The claimant had made no such application and had suffered no loss capable of recovery in the present claim. His proceedings therefore could not succeed.

5. The claim against the second defendant failed at the duty stage. Applying the settled principle in Connolly-Martin v Davis [1999] PNLR 826, counsel ordinarily owes no duty of care to the opposing party’s client. No exceptional circumstances existed and no such duty was arguable.

6. Summary judgment was entered for the first and second defendants.

Not an appeal. The judgment itself records no prior appellate decision.