SUMMARY JUDGMENT FOR DEFENDANT IN A NEGLIGENCE ACTION AGAINST SOLICITORS
I am grateful to my colleague at Hardwicke, Laurence Page, for sending me a transcript of the judgment of District Judge Langley in the case of Wright -v- Rix & Kay Solicitors, Central London County Court, 30/11/2017 (available here Wrighttranscript). It is an interesting example of the court (i) considering the limited scope of a solicitor’s retainer; (ii) granting summary judgment because oral evidence would not take the matter any further.
The claimant instructed the defendant solicitors in 2002 to act on her divorce petition. They also obtained legal aid so that the claimant could take the financial remedies issue to mediation. The matter resolved at mediation.
Many years later the claimant saw an advertisement advising that solicitors may have been negligent in failing to advise in relation to pension sharing issues. She issued proceedings against the defendant alleging that they were negligent in failing to inform her about the potential of pension sharing.
THE DEFENDANT’S APPLICATION FOR SUMMARY JUDGMENT
The defendant applied for summary judgment. It argued that it was never instructed in relation to the financial remedies matters. The instructions were limited to the divorce petition and obtaining funding for the mediation.
THE JUDGMENT: THE LIMITED NATURE OF THE RETAINER
The judgment contains a detailed review of the principles and cases relating to both summary judgment and the extent of a solicitor’s retainer. The claimant argued that there was a factual dispute between the parties. The judge held the limited public funding made it clear that the terms of the retainer did not include a full review of the financial remedies issues.
“… I have concluded that the only possible terms of the retainer of the defendant was limited to obtaining mediation help from the Legal Aid Board and then translating the terms of the agreement into an order which was later approved by the court.”
ORAL EVIDENCE WAS UNLIKELY TO TAKE THE MATTER FURTHER
The judge concluded that there was an “absence of reality” in the claimant seeking to take the matter to trial.
“It is fair to say that due to the passage of time, and it is now fifteen years since the relevant acts complained of took place, the reliable memory of either the claimant or, indeed, the defendant’s fee earner is probably limited and the court will largely have to reach any decision based on the documentary evidence contained within the defendant solicitors’ file”.
The documentary evidence did not support the claimant’s claim. It was very clear that the terms of the retainer entered into between the parties was limited. The defendant carried out the terms of the retainer and did the work it was supposed to do. They did not give any overall financial advice, they were not in a position to do so.
The judge granted summary judgment to the defendant.