Minkin v Lesley Landsberg (Practising As Barnet Family Law)

A solicitor’s duties are defined principally by the agreed retainer. The solicitor must perform the agreed tasks competently and give advice reasonably incidental to that work. Whether advice is reasonably incidental depends on all the circumstances, including the client’s character, experience and apparent need for advice.

A solicitor and client may agree a limited retainer. Good practice requires its limits to be recorded clearly in writing, although that is not an invariably necessary condition of legal effectiveness. A solicitor acting only to draft an agreed financial remedy order need not advise on the agreement’s merits or investigate possible duress where the client is experienced, has already received independent advice and gives no indication that further advice is required.

The claimant instructed the defendant solicitor to put a financial agreement reached with her former husband into the form of a consent order suitable for the County Court’s approval. The claimant was an experienced accountant, had previously received advice that the proposed settlement might be unsatisfactory, and wished to conclude it swiftly.

After the order was approved, the claimant brought professional negligence proceedings. District Judge Jackson dismissed the claim, finding that the defendant had accepted a limited retainer, performed the agreed work and owed no duty to advise upon the settlement’s merits or investigate duress. The claimant appealed on breach of duty and causation, seeking remittal of causation and damages to the County Court.

The central issue was the extent of the advice reasonably incidental to a solicitor’s limited retainer to draft an agreed financial remedy order.

1. Appeal dismissed unanimously. The defendant acted under a defined and limited retainer. Her task was to express the former spouses’ agreement in a consent order capable of approval by the court. The trial judge’s finding about the scope of the instructions followed oral evidence and could not be displaced on appeal.

2. A solicitor’s contractual duty is to perform the tasks which the client instructed and the solicitor agreed to undertake. The retainer also carries a duty to give advice reasonably incidental to that work. What is reasonably incidental depends on all the circumstances, including the client’s character, experience and apparent need for advice. If a solicitor becomes aware, while performing the retainer, of a risk to the client, the solicitor ordinarily must communicate it.

3. The parties may agree to limit duties which would otherwise fall within the retainer. The limitation should, as a matter of good practice, be confirmed clearly in writing. Failure to do so may cause the court to reject the alleged limitation, but there is no universal rule that a limitation is legally ineffective unless all the formal precautions suggested in Hurlingham Estates are observed. A client unable to afford comprehensive advice may legitimately choose a limited retainer instead.

4. On the facts, advice about the settlement’s merits, possible unfairness and the absence of investigation into the husband’s resources was not reasonably incidental. Those matters were apparent to this experienced client, who had already obtained advice about them and nevertheless wished to proceed swiftly. The references to bullying did not require the solicitor to investigate duress, and receipt of the previous solicitors’ file created no duty to read it immediately or intervene before approval of the order.

5. The defendant performed the work instructed and was not in breach. Independently, causation failed: the claimant had already received and disregarded the warnings which she alleged the defendant should have repeated. The evidence could not support a finding that repetition would have changed her decision.

6. King LJ added that a financial agreement does not oust the court’s statutory jurisdiction. The court independently assesses a proposed consent order and may inquire further or require amendments, although it is not required to investigate as a “bloodhound or a ferret”. Limited drafting services are valuable to litigants and courts, but their written terms require considerable care.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the finding that the defendant owed and performed only the duties arising from the limited retainer. It also held that causation could not be established.

2. Central London County Court: District Judge Jackson dismissed the professional negligence claim after trial. She found that the retainer was limited, that the defendant had performed it and that the claimant’s alleged damages were speculative.