Joanne Lewis v Cunningtons Solicitors

A solicitor’s duty is shaped by the retainer, but a general retainer for divorce and financial matters is not transformed into a limited drafting retainer merely because the client discusses direct settlement. The solicitor must give advice reasonably incidental to the work, having regard to the client’s experience, vulnerability and the information available. Where a pension is plainly the principal matrimonial asset, the solicitor must give clear advice about the likely consequences of settlement and should use Form P where a pension sharing order might be made. A disclaimer cannot fairly remove that duty before adequate advice has been given. Client autonomy remains important, but it does not excuse a failure to advise. Contributory negligence will be unusual where the client is an unsophisticated lay person.

The claimant alleged that the defendant solicitors negligently advised her during the financial settlement of her divorce. After a long relationship, she accepted a clean-break settlement giving her approximately £50,500 net, while her former husband retained a substantial police pension and other capital. The defendant maintained that its retainer had become limited to implementing an agreement reached between the parties, and relied on a disclaimer signed without full financial disclosure.

The central issues were the scope of the retainer, whether the defendant should have advised the claimant to pursue a pension sharing order, whether the disclaimer limited the duty, causation, loss of chance, quantum and contributory negligence.

1. Claim succeeded. Judgment was entered for the claimant in the sum of £400,000.
2. The principles in Minkin v Landsberg [2016] 1 WLR 1489 were accepted, but the case was distinguished. The defendant had initially undertaken a general retainer concerning divorce and financial matters. The reference to different settlement routes did not create discrete, exclusive options or a limited retainer confined to drafting a consent order.
3. The scope of duty depended on the claimant’s instructions and circumstances, including her lack of financial experience, vulnerability, bullying and intimidation, and the defendant’s knowledge of the husband’s substantial pension. The defendant had enough information to give meaningful advice without knowing every financial detail.
4. The defendant should have actively considered a pension sharing order and served Form P, consistently with Martin-Dye v Martin-Dye [2006] 1 WLR 3448. It should have explained clearly that the proposed settlement would leave the claimant with about £30,000 net, whereas court proceedings would very probably produce a pension sharing order of approximately 50 per cent, worth about £500,000.
5. Repeated statements that the defendant could not advise without full financial disclosure, together with the one-size-fits-all disclaimer, were inadequate and amounted to breaches of duty. Advising that a pension sharing order was merely possible did not discharge the duty. The claimant’s autonomy meant that she retained the final decision, but did not remove the obligation to provide clear advice.
6. The claimant would have followed proper advice. The court treated a pension sharing order on an equal-value basis as almost certain, allowed deductions for sums and an endowment received, and allowed £12,500 for costs. A discount for loss of chance produced damages of £400,000. Contributory negligence was rejected as inconsistent with the defendant’s primary case and inappropriate in the circumstances.

This was a first-instance decision of the High Court. The judgment states that an earlier application to strike out the claim and/or for summary judgment was dismissed by Deputy Master Fine on 12 February 2021.