No Excuse for poor practice

A recent High Court move which could have blocked a number of solicitor's negligence actions has failed.

In a case closely followed by a number of firms with pending negligence actions and also by the Solicitors Indemnity Fund, the High Court refused an application to throw out part of a negligence action as frivolous, vexatious and an abuse of the court process. The action centred on settlement of ancillary divorce proceedings.

The events which led to the dispute involved the separation in 1986, and later the divorce, of an American woman married to an Englishman. As part of the divorce proceedings, settlement was reached for ancillary relief and approved in 1988 by Judge Garfitt at Cambridge County Court.

However, the wife mounted a negligence claim against her Cambridge solicitors Miller & Co, on the adequacy of the settlement.

The law firm applied to have part of the action struck out, arguing that because the consent order had gained judicial approval it had to be seen as a "final order of the court".

It claimed that to allow the actions to continue would amount to a collateral attack on a final decision taken by a court of competent jurisdiction. Any challenge, the firm argued, should be mounted in the Court of Appeal or by an application to set aside, not by way of a separate negligence action.

However, that argument was rejected by Mr Justice McKinnon at a chambers hearing in the Queen's Bench Division. And because of the relevance of the case the judge gave leave for the matter to be reported.

Had this argument succeeded, Ian Pattinson, a partner in the litigation department of Cambridge office of Hewitson Becke & Shaw, which represents the wife, said it would have paved the way for the same ploy to be used to block other negligence claims in respect of court-approved settlements in the matrimonial field.

The case may yet go on to appeal on this point, but Pattinson thinks the arguments were unrealistic. "I do not recall any settlement of this nature not being substantially approved by a judge," he said.

"My experience is that courts are unlikely to examine the terms of a settlement closely if both parties are legally represented and it is virtually unknown for the courts to refuse to approve agreed terms."

Pattinson said that if the judge had allowed the application to be struck out, the way would have been clear for similar negligence actions to be struck out, an approach he believes would have been wrong given the practical approach of judges to settlements negotiated by solicitors.