Padden v Bevan Ashford (A Firm)

In a professional negligence claim, causation depends on the counterfactual question whether the claimant would have acted differently if properly advised within the scope of the retainer.

A trial judge is entitled to resolve that question by assessing the claimant’s credibility and the whole evidential picture. A warning that a transaction carries some risk is not equivalent to advice that the desired outcome is highly unlikely. Independent advice is intended to help a person exposed to undue influence reconsider the proposed transaction and its consequences.

The claimant sued her solicitors for professional negligence after signing documents surrendering or charging substantial assets to help repay money misappropriated by her husband. She alleged that the solicitors failed to advise her properly about the very limited prospect that the transactions would prevent his prosecution and imprisonment.

An initial trial was stopped after the judge found that the claim had not been established. On the first appeal, the Court of Appeal ordered a retrial and expressed concerns about the treatment of the solicitors’ role, including the significance of the certificate attached to the legal charge: [2011] EWCA 1616. On retrial, His Honour Judge Vosper QC found breach of duty and held that proper advice would have caused the claimant not to sign the documents. The present appeal challenged that causation finding, the assessment of the evidence, and an alleged inconsistency in the factual findings.

Appeal dismissed. Lord Justice McCombe gave the judgment, with the Master of the Rolls and Lady Justice Arden agreeing.

1. The central causation question was whether the claimant would have acted differently if advised in accordance with the scope of the solicitors’ retainer. The trial judge had heard the claimant’s evidence and was entitled to determine that counterfactual question by assessing her credibility, including in the face of robust cross-examination.
2. The claimant gave clear evidence that advice explaining that payment would be very unlikely to prevent prosecution would have mattered greatly to her. The judge was entitled to accept that evidence notwithstanding earlier formulations of her case and her determination to protect her husband for the sake of the children. The challenge that no reasonable judge could have reached the conclusion therefore failed.
3. The purpose of independent legal advice in circumstances involving undue influence is to incline the affected person to reconsider a transaction advanced under improper influence. The relevant advice required investigation of the circumstances and an evaluation of the real prospect of avoiding prosecution, rather than merely witnessing documents or recording consent.
4. There was no inconsistency between the findings concerning the two meetings. On 28 March, the claimant understood that prosecution remained a risk, but had not been told that the chance of avoiding it was slim. By 10 April, proper advice would have been given on fuller information and would have explained that prosecution and imprisonment were highly unlikely to be avoided. Those different findings supported, rather than contradicted, the conclusion that she would not have signed.
5. The certificate on the legal charge was evidence of what occurred, but it was not conclusive. The judge was entitled to prefer the claimant’s account where Mr Mackay had no specific recollection, relied on supposed usual practice in an unusual case, and had later stated that he knew nothing about the relevant circumstances. The damages award and interest remained in place.

• Court of Appeal (Civil Division): The present appeal was dismissed, upholding the damages award.
• Court of Appeal (Civil Division): On an earlier appeal, the court ordered a retrial and addressed breach of duty, without deciding causation or loss: [2011] EWCA 1616.
• High Court (Queen’s Bench Division): On retrial before His Honour Judge Vosper QC, the defendants were ordered to pay £67,037 damages and £6,368.52 interest.