AMENDMENT, FOOTBALL AND THE ALLEGEDLY NEGLIGENT SOLICITOR: SIX KEY POINTS (WITH THE LAST ONE BEING THE MOST IMPORTANT OF ALL)

There are many reasons litigators should read the judgment of Mrs Justice O’Farrell in Jenkins v JCP Solicitors Ltd [2019] EWHC 852 (QB).

1. It provides yet another example of a claimant suing the wrong entity

The firm of solicitors being sued had traded as  an LLP  at the time of the alleged negligence and then became a limited company.   The claimant had issued proceedings against the wrong entity.   This is mistake that has been made in several cases reported on this blog.  It is important to check the historical status.

2. It provides an example of the tortuous provisions of CPR 17.4

The court allowed the claimant to amend the claim on the grounds that there had been a “mistake”.  The nature of that mistake is crucial.  See the discussion of this rule in an earlier post on this blog. 

3. It illustrates the dangers of issuing late.

The claimant did not get permission to amend in relation to advice allegedly given in  April 2011.  It was arguable that this claim was now limitation barred and the court refused permission to amend against the LLP in relation to that allegation.

4. It illustrates the dangers of a standstill agreement

The claimant entered into an agreement with the company in relation to a standstill agreement. However that standstill agreement did not bind the LLP.

5. It shows that the defendant is not the claimant’s keeper

The judge stated.

  1. I reject any suggestion that the respondents misled the appellant as to their identity or acted in bad faith. It is not incumbent on a party to make the other side’s case for it or to point out errors in the claim advanced by the other side. A defendant is entitled to rely on all defences properly available to it, just as a claimant is entitled to rely on any reasonable cause of action against a defendant that has a real prospect of success.

6. Most of all, however, it shows the dangers of working for free…

The claimant had consulted the defendant in 2011 in relation to his proposed divorce.

The defendant’s stance was set out in a letter

“Thank you for your letter of yesterday’s date. Unfortunately, there appears to have been a misunderstanding. We did have one initial meeting with Mr Jenkins on 7 April 2011 which was free of charge, there was no follow-up, we did not hear from him again until October 2015.”
Understanding the claimant’s  case

The claimant’s complain appears to be that solicitors should be aware of the future results of future football matches, as a result of the defendant not being aware, his ex-wife now as a decent standard of living.  For those matters the defendant should pay him compensation.

  1. Until recently the appellant, Mr Jenkins, was the Chairman of Swansea City Association Football Club (“Swansea City AFC”). In February 2011 the appellant separated from his wife. On 7 April 2011 the appellant sought legal advice in relation to potential matrimonial finance proceedings. The LLP advised him against instituting proceedings as his level of indebtedness would preclude a “clean break” settlement. In June 2011 Swansea City AFC was promoted to the Premier League. In October and/or November 2011 the appellant received further advice from the LLP that his finances were not sufficiently stable to reach a financial settlement with his wife. Following the promotion of Swansea City AFC, the appellant’s financial position improved substantially, primarily by reason of the significant increase in the value of his shares in Swansea City AFC. In 2015 the appellant instructed alternative solicitors (“IPS Law”). In 2016 the appellant’s wife started divorce proceedings. A decree nisi was pronounced on 1 March 2017. On 14 March 2017 a financial settlement was achieved under which the appellant agreed to pay a lump sum of £2.25 million, transfer assets and make periodical payments to his former wife.
  2. The appellant’s case is that in 2011 the LLP should have been aware that his financial position was likely to improve and should have advised that it would be advantageous to start matrimonial proceedings before a material change in his circumstances occurred.
  3. The respondents’ position is that the Company did not provide any advice prior to 2015; any advice provided was within the range of advice which could have been given by a reasonably competent solicitor; in any event, even if the appellant had started matrimonial proceedings in 2011, it would not have resulted in a quicker or lower financial settlement.”

Free advice could lead to negligence claims

The point here is that the advice given in April 2011 was given “free”.  I am not certain whether it fully recorded.  If the claimant had been slightly more on the ball then proceedings against the LLP would have been issued within the limitation period and the defendant potentially liable.  The law is now clear – advice given on a gratuitous basis is advice that can attract liability.    The defendants face, at the very least, many  (possibly hundreds) of hours of – unpaid – work in helping preparing their defence.

This is something that everyone should be aware of when giving, or asked to give, “free” advice.  It is just as important to record that advice as it is for advice given on a commercial basis.