Padden v Bevan Ashford (a firm) [2011]

Padden v Bevan Ashford (a firm) [2011] EWCA Civ 1616;  [2011] WLR (D)  393

A recent case in the Court of Appeal reinforces the danger of giving free Legal advice and the requirements of advice when a Solicitor signs a declaration and witnesses a Mortgage deed.

The original claim centred around the advice given in 2 meetings, the first that of 27th March 2003 when the claimant called in off the street without an appointment and met with a newly qualified solicitor Miss Shimmer.

The meeting was a short one, according to the claimants evidence it lasted 5 minutes. The claimant explained the situation to the defendant, namely that she was being asked to give away all interests in her property, but the reason for it was to spare her husband from a criminal prosecution.

Miss Shimmers advice to her was not to proceed with the proposed transaction. The meeting was not charged for as it was the defendants policy to give a free half hour initial interview. There was no contemporaneous note of that meeting. However a meeting took place on 10th April 2003,  where the claimant attended with her husband, at the Exeter branch of the defendants, they met with Mr Mackay a solicitor.

The claimant signed 4 documents, a second mortgage, a charge on shares, a charge over some endowment policies and a deed, all documents in favour of Mrs Partridge who the money was owed to.

Mr Mackay witnessed the signing and also certified in the mortgage the claimant had

” had had the consequences of this deed and the obligations imposed on her explained by a solicitor / legal executive and that he was satisfied that she understands the nature of the deed and its meaning and effect and that to the best of his knowledge she had fully consented to it without undue influence”

She lost the property despite attempts to defend the claim of Mrs Partridge

She then brought a solicitors negligence claim in 2009 against the defendant.

The solicitors defended this claim on the basis that,there no breach of their duty,the claim was time barred and that it would fail on causation, perhaps surprisingly the judge halted proceedings on day one of a three day hearing saying there was no case to answer by the claimant.

The Court of Appeal expressed concern with aspects of the courts decision;

  • The judge had written off the extent of the firms involvement in the meeting of April when the client had signed the documents and the declaration was given by the Solicitor.
  • That he was preoccupied with the fact that the initial meeting was short and free of charge
  • He paid too much regard to the claimants determination to proceed with the transaction come what may. It was wrong to argue that the solicitor was only witness to the transaction. The Solicitor had signed a declaration on the mortgage documentation which said she had been properly advised on the transaction.
  • The advice required to be given went way beyond advising the client that she shouldn’t proceed. It was the solicitors duty to ensure the client was properly advised, not simply to protect her position but to ensure the third party would counter any assertion that she was acting under her husbands  influence. If she was going to advise then she should do so properly, the judge stated that she should have emphasised to the claimant exploring the desirability  of putting her assets at risk to protect her husband.
  • She should have been told to find out all the relevant facts before she executed the documents. If in that short initial meeting there wasn’t enough time then the meeting should be adjourned and a further more extensive meeting arranged.

The Master of the Rolls said

“In these circumstances, I would allow the appeal. On the basis of the evidence which he heard and read and the primary fact-findings which he made, the Judge was wrong to conclude that the defendants had complied with their duty to the claimant for the reasons which he gave, and it is not possible for this court to hold that the claimant would have acted no differently if she had been properly advised. There must be a new trial in front of a different judge.”

The appeal will now be retried and will go back to the Bristol Registry.


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