Welcomed Decision on ‘unbundled’ advice

17 December, 2015

In Minkin v Lesley Landsberg (Practising as Barnet Family Law) [2015] EWCA Civ 1152, the Court of Appeal held that solicitors do not owe their clients a wider duty of care for work that falls outside the scope of a limited retainer.

 

In Minkin, the Defendant solicitor was instructed to put the terms of a draft matrimonial consent order, which was agreed with the Claimant’s former husband, into an acceptable form. Shortly after the approval of the consent order, Lesley Landsberg, the Claimant, questioned the terms of the order, stating that the settlement was less advantageous to her than it should have been. The Claimant alleged that the Defendant had acted negligently in failing to provide adequate advice in relation to the merits of the agreement.

 

The High Court, at first instance, ruled that the Defendant was not negligent as the retainer was limited in scope and did not include advising on the merits of the order. The Court ruled that, as the limited retainer only dealt with the drafting of the consent order, the solicitor was under no duty to provide this additional advice. The Claimant appealed this decision to the Court of Appeal on the basis that the Defendant was under a duty of care to provide broader advice. The Court of Appeal refused to insert these broader responsibilities into the agreed limited retainer and upheld the High Court’s earlier decision. In particular, Lord Justice Jackson agreed with the High Court, stating that the retainer was limited and that the solicitor was under no obligation to provide this additional advice on the merits of the agreement.

 

In light of the recent legal aid cuts and other challenges to litigation funding, this case is reassuring for clients who will increasingly rely on the availability of ‘unbundled’ legal advice to help them deal with the most challenging aspects of litigation when they are unable to afford representation on a more comprehensive basis. However, the case also illustrates that solicitors acting on a limited retainer should ensure that the scope of their retainer is clearly set out in writing and that careful thought is given to the matters falling within the retainer, and those which are specifically excluded.