A former divorce client who claimed almost £1.3m for allegedly negligent advice made 17 years ago has lost her challenge in the Court of Appeal.
In Kay v Martineau Johnson judges agreed that Ellen Kay’s claim had been time-barred because she had enough knowledge to have made it earlier. Kay had alleged that her law firm, which has since become Shakespeare Martineau, was negligent in its advice on a ‘clean break’ settlement where she received the net proceeds of the sale of a property, a £4,000 lump sum for spousal maintenance and 80% from an ongoing claim against their house builder.
The client had no criticism of the firm at the time but later asked whether the settlement could be reopened after she learned that her ex-husband had hidden some of his wealth. The firm said there was no basis for setting aside the settlement and ceased to act for Kay in 2009.
The court heard that Kay continued to doubt whether the settlement had been fair and received her file from the firm in 2018. Proceedings were issued in 2023. The firm argued the claim was statute-barred, as well as denying it acted negligently.
Kay argued that when she received the case file in 2018, she could not afford to instruct a lawyer and had to prioritise her children and their exam studies. She instructed a family law barrister only in 2020 who then advised there might be a potential claim against Martineau Johnson.
Lord Justice Newey said there was no reason to doubt Kay was short of money between 2018 and 2020, but that she had received significant financial assistance during this period from her partner. There was also no suggestion that Kay investigated other ways in which she might have been able to obtain advice, with no reference to finding out whether a lawyer might have been prepared to act pro bono or on a conditional fee basis.
Newey added: ‘The evidence suggests that the delay in obtaining [counsel’s] advice was caused by a lack of prioritisation rather than shortage of money. Ms Kay saw no need to move quickly and gave priority to other matters.’
Lord Justice Males agreed the appeal should be dismissed, but on the basis that the client had enough constructive knowledge in 2009 to have acted then.
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