Brendan Malkin
At least 100 cases against solicitors for negligent advice to wives who handed over their assets to their husbands as loan security are likely to go ahead after a House of Lords ruling last Thursday.
The Lords unanimously ruled in Royal Bank of Scotland ridge that solicitors’ duty is now only limited to advising on the nature and effect of a husband using his wife’s property as security for a loan on his business.
This will make it harder for solicitors to be sued by the wives for negligence as it dilutes previous demands set on them by the Court of Appeal. Miriam Bartlett, insurance partner at Pinsent Curtis Biddle, was hired by the Law Society to fight its corner.
The Court of Appeal ruled earlier that solicitors must not only advise wives on their legal positions, but also undertake investigations into the husband’s business and even the state of his marriage. To date, there have been hundreds of cases similar to Etridge.
All the firms sued by the women involved in the eight cases consolidated in the test case had either accepted liability and made a nominal payment, or were found to have advised correctly.
Lord Nicholls of Birk-enhead established the standard to which lawyers should refer when giving advice.
Solicitors must ensure that a wife is aware of the practical consequences of signing loans as security. The risks involved must be outlined, including that the lending bank may, for instance, alter its terms or increase the loan without informing her.
The solicitor should discuss with her other finances she could fall back on and find out if she wants to confirm details with the bank and whether she wishes to negotiate.
In one out of eight cases heard by the Lords, the wife, Mrs Etridge, challenged loan repayments by a bank and trustee fund after she claimed her signature to the deal had been procured by her husband’s undue influence.
Solicitors Robert Gore & Co were sued by Etridge and settled out of court, but only made a nominal settlement as it was found that she would have signed despite the advice. Etridge actually signed the documents without reading them.
Lord Nicholls’ additional advice to solicitors was that discussions with the wife should, in the husband’s absence, be face-to-face.
