A case concerning the standard of advice expected from a newly qualified solicitor in a brief, free, consultation with a distressed client is set for a retrial following an appeal court decision.
In Padden v Bevan Ashford, the Court of Appeal overruled a trial judge’s decision last year to throw out a negligence claim against a south-west law firm on the grounds that it would have imposed a ‘wholly unreasonable standard of care’ on solicitors giving free advice to clients who walk in off the street.
In 2003, Heather Padden learned that her husband was a fraudster who owed £200,000. She was told by his solicitor that the only way to save her children from seeing their father go to prison was to sign over her interest in the house, so that he could repay the money.
The solicitor told Padden to seek independent legal advice ‘for the sake of formality’, but to ignore any advice not to sign.
In a distressed state, Padden was turned away by two solicitors before Rebecca Shinner, a newly qualified solicitor at what was then Bevan Ashford in Tiverton, agreed to see her. During a meeting lasting no more than 15 minutes, Padden outlined her situation and Shinner advised her not to sign. When Padden said she still intended to do so, Shinner commented: ‘I hope your husband is worth it’.
Shinner did not charge Padden for the session.
A few weeks later, Padden took the relevant documents to Bevan Ashford’s Exeter office, where partner Gary Mackay witnessed their signature and certified that the consequences had been explained.
Padden subsequently sued Bevan Ashford, claiming it had failed to advise her properly. The trial judge threw out the claim after the first day of her evidence, finding that she had not established any breach of duty by the law firm. He said that to ‘foist’ a duty to give full advice ‘on a solicitor who simply agreed to see someone off the street without an appointment [is] an absurdity’. To expect Ms Shinner to do more, in a short, free session, than to tell Padden not to sign, would ‘impose a wholly unreasonable standard of care on the solicitor’.
But in the Court of Appeal last month, Master of the Rolls Lord Neuberger found the trial judge had been wrong to ‘write off’ Bevan Ashford’s role at the second meeting, and had been ‘overimpressed’ by the fact that Padden’s consultation with Shinner was short and free of charge.
Neuberger said solicitors in such circumstances were under a duty to advise that a short consultation was inappropriate, and further investigation was needed. He said Padden might well have chosen not to proceed had she learned that in reality her husband, who was sentenced to five years’ imprisonment in 2005 for obtaining £2m by deception, was unlikely to avoid incarceration.
The case has been remitted to Bristol District Registry for retrial.
Bevan Ashford demerged in 2004 to form two firms, Ashfords and Bevan Brittan. Ashfords is acting as solicitors to Bevan Ashford in defending the claim; Bevan Brittan has no involvement in the case.
Read Rachel Rothwell's blog on the case.
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