Solicitor—Negligence—Public funding

Court of Appeal, Civil Division
Lords Justices Waller and Lawrence Collins
4 July 2007

A solicitor has to be bound at the outset to consider the question whether or not a client might be eligible for legal aid; they are not entitled to a period of time in which to continue taking instructions while gathering information in relation to contemplated proceedings.

David Burrows (instructed by International Family Law Chambers) for the claimant.
Martin Westgate (instructed by Ole Hansen & Partners) for the defendant.

The defendant’s marriage was in trouble and she was anxious about the position of the child of the marriage. She approached the claimant solicitors. A meeting was held on 19 February 2003. On 26 February the defendant sent a fax instructing the claimant to “go immediately for proceedings for divorce as well as for custody of [the child]”. Advice was sought informally from counsel on 27 February, who suggested proceedings to freeze the husband’s assets.

That resulted in instructions being given by the defendant to instruct counsel and take proceedings to freeze the husband’s assets. It was indicated that the defendant would be borrowing from her parents. Considerable time was spent by the claimants on preparing the various proceedings. They sent a fax to the defendant on 3 March indicating that they did not do publicly funded work. Three letters, before action, were sent to the husband on 3 March, seeking undertakings by 5 March.

On 5 March the husband’s solicitors replied, stating that the time frame was unrealistic and that they had submitted an application for public funding. At that stage there were further conversations involving the defendant and her advisors about assets. Ultimately, further expenditure having been incurred and the costs having mounted, a decision was taken for the respondent to transfer to a firm who did do legal aid work.

She transferred to another firm, Bindmans, on 7 April 2003. They immediately granted her public funding on the basis that she was likely to succeed in an application for public funding. The claimant subsequently brought proceedings for some £21,000 in professional fees. The defendant argued that the claimant had been negligent in failing to advise her that she might be eligible for public funding. The judge ruled in her favour and the claimant appealed.

WALLER LJ:
The issue was whether the claimant should have advised the defendant that she might be eligible for legal aid earlier than it did. In considering that question, it was important to have in mind the relevant guide to the professional conduct of solicitors, which was then in force. It provided: “5.01 A solicitor is under a duty to consider and advise the client on the availability of legal aid where the client might be entitled to assistance under the Legal Aid Act 1988.” (See Guide to Professional Conduct of Solicitors, 8th Ed, 1999).

Also relevant was the Family Law Protocol, which had been published in 2002, which contained the following guidance about best practice for solicitors:

“Availability of public funding.

2.3 Solicitors are reminded of their professional duty to consider and advise clients on the availability of public funding, where clients might be entitled to such assistance. Accordingly, the solicitor should be aware of the levels of eligibility for public funding. 2.5 If clients who may be eligible for public funding, either at the outset of a case or at any time during it, have consulted solicitors who do not undertake publicly funded work, they must be given the option of being referred to solicitors who do carry out publicly funded work (even if this means referring clients to another firm)”.

The claimant argued that no reasonable solicitor would have formed the view on the facts as known them as at 26 February 2003 (the date when it submitted the retainer commenced) that the defendant might be eligible for legal aid. The difficulty was first that the defendant’s assets were by no means clear cut. Any reasonable solicitor would have formed the view that she might be eligible for public funding. Once the claimant knew the defendant had no money and was having to borrow from her parents, then only if inquiries of the defendant revealed assets which put public funding out of the question could the claimant have ignored the question of public funding.

A further confirmation, that a reasonable solicitor should have contemplated that the respondent might be eligible for legal aid, was confirmed by the reaction of Bindmans, once the defendant went to them. They immediately formed the view that she was likely to be eligible and thus issued an emergency certificate, and there was no material change in circumstances as between February and April 2003.

What the claimant’s submissions really came to was that a solicitor such as the claimant was entitled to a period of time during which they continued to take instructions and run up costs while they gathered information in relation to the proceedings contemplated, and only once the gathering of that information had prompted them to consider that their client might be eligible for legal aid, were they obliged to act.

It was on that basis that they contended it was important that the retainer only commenced on 26 or 27 February, since it was only a short period of time before the claimant advised that the defendant could go to another firm because she might be eligible for legal aid—that happened in March 2003. That simply could not be consistent with the duty of a solicitor.

A solicitor has to be bound at the outset to consider the question whether or not a client might be eligible for legal aid. There are various reasons why that has to be so. First, it would be quite wrong to incur substantial expenditure chargeable privately to the client if public funding was available. Second, a client has more difficulty changing firms of solicitors if work has been done and a relationship built up, before advice was given that a different firm could become involved.
The appeal would therefore be dismissed.

Lawrence Collins LJ agreed.