Master of the Rolls orders retrial of Ashfords negligence claim
13 January 2012 | By Katy Dowell
11 November 2013
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The Master of the Rolls Lord Neuberger has ordered the retrial of a professional negligence claim brought against Ashfords after the first instance judge His Honour Judge (HHJ) Denyer QC halted the trial after just one day.
Handing down judgment in the case in December, Neuberger MR concluded that HHJ Denyer was wrong to dismiss the claim without hearing it in its entirety, adding: “There must be a new trial in front of a different judge.”
Former client Heather Padden alleged that the firm failed to advise her properly in 2003 in connection with a transaction that cost her her home and interest in certain endowment policies, shares and pensions.
Padden had gone to Ashfords legacy firm Bevan Ashford for advice on whether she should forego her interest in the her family home in Devon to help her repay the victim of her husband’s fraudulent behaviour. He was later sentenced to six year in prison for a £2m theft.
The first instance judge was told how Padden had wanted separate advice from her husband, with her aim being to keep him out of prison for “the sake of the children”.
At Bevan Ashford she was initially seen by a junior lawyer for fewer than 15 minutes and was advised against the transaction. Just weeks later she met with then senior associate Gary Mackay - who has since been made partner and launched the firm’s Bristol office - who signed off on the transactions.
In defence of her negligence claim the firm contended that it had not been in breach of any duty, that the claim was time barred and that it would fail on causation.
HHJ Denyer halted the proceedings one day into a three-day hearing stating that there was no case to answer.
A Court of Appeal (CoA) panel of three chaired by Neuberger MR alongside Lord Justices Hughes and Sullivan said there were three principal areas of concern about the first instance judgement. First, that the judge wrote off the extent of the firm’s involvement in the case; second, that he was preoccupied with the fact that the first meeting between the parties was short and free of charge; and third, that he was too impressed by the claimant’s determination to proceed with the transaction come what may.
In signing off the transaction, Neuberger MR found, Mackay had done more than appear just as a witness to the transaction.
According to the CoA ruling: “Given that the claimant’s husband took the claimant to a solicitor to witness their signatures on the four documents, and to give the certificate, a judge may well conclude that it was likely that a competent solicitor would have ensured that he understood the basic nature of the transaction contained in the four documents.”
It was the solicitor’s duty to ensure that the client was properly advised not simply to protect her position but to ensure the third party - in this case the victim of the fraud - could counter any assertion that Padden was overborne by her husband.
Ordering a retrial in front of a new judge, Neuberger MR stated: “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 […], and it is not possible for this court to hold that the claimant would have acted no differently if she had been properly advised.”
The firm instructed 1 Chancery Lane’s Karen Shuman directly while Padden was advised by 13KBW’s Richard Owen-Thomas, who was instructed by Samuels Solicitors.