Johnson: Overturned circuit judge
A former client of a leading family law firm should be allowed to sue over its alleged failure to advise about its own negligence, the High Court has ruled.
Mr Justice Adam Johnson also suggested that a solicitor was under a continuing duty to advise about a possible claim throughout the limitation period.
He made the comment in overturning the decision of Her Honour Judge Evans-Gordon to summarily dismiss Jenifer Evans’ counterclaim against London practice Hughes Fowler Carruthers (HFC). HFC is suing her for £90,000 in outstanding fees.
The firm acted for her in 2011 in divorce proceedings before Mr Justice Mostyn, instructing Charles Howard QC. At the same time, both were also acting for Lady Mostyn in her divorce from the judge.
After the trial, but before he handed down his judgment, it emerged that Mostyn J had made disparaging comments about HFC and Mr Howard to Lady Mostyn. This raised the possibility of an allegation of bias which might vitiate his ruling.
With Mr Howard and HFC conflicted, Ms Evans instructed Farrer & Co and Richard Gordon QC, and the President of the Family Division set aside Mostyn J’s ruling in June 2012.
HFC and Mr Howard were able to resume acting, subject to restrictions given the ongoing duty of confidence owed to Lady Mostyn.
There was a further trial before Mr Justice Moylan in 2013 and HFC carried on working on the case until 2018, for which it was paid £400,000. HFC’s fees claim, brought in 2021, concerned a final piece of work to vary the financial orders made.
Ms Evans counterclaimed for negligence, seeking as damages her costs of about £500,000 which she said were wasted on the first trial because HFC failed to advise her of the risks.
HHJ Evans-Gordon rejected her argument that, in mid-2012, HFC came under a duty to advise her about its own negligence in leading to the mistrial, one that continued until 2018, when any potential claim became time-barred.
Adam Johnson J said the judge was wrong, finding that she had “placed too much stress on the idea that the alleged breach of duty by HFC cannot have been obvious because no-one else flagged it at the time”.
“By the relevant stage of her judgment, the judge had already concluded… that HFC’s omissions were all obvious; and indeed so obvious as to place the onus on Ms Evans to seek separate advice about recovering her losses.
“The idea that the possibility of a claim should have been obvious to Ms Evans, a lay person, seems to me inconsistent with the idea that HFC, a firm of solicitors, cannot reasonably have been expected to know about it themselves.
“If HFC did know as much as Ms Evans, then arguably they were under a duty to advise, and could not escape it by saying that Ms Evans was equally aware of the facts giving her cause for complaint.”
Adam Johnson J continued: “The idea that a solicitor may owe a duty to advise about his own negligence is not confined to cases where the negligence is in some way latent, and where the question is whether something which happens later was enough to prompt the original advice or conduct to be reconsidered.
“I see no principled reason why the duty should not also apply to cases where the potential problem is known about to begin with.”
The judge did not make a finding about the question of a continuing duty and so Adam Johnson J said he had to be cautious about expressing any definitive view about it.
“I will however say that in my opinion, there is a logic in arguing (as Ms Evans does) that if HFC came under a duty to advise her about a possible claim in mid-2012, then that duty persisted for such period of time as Ms Evans was able to do something about it – i.e., there is logic in saying that the duty persisted during the six year limitation period for bringing any such claim, which expired in mid-2018.”
The court also overturned HHJ Evans-Gordon’s decision that Ms Evans could not seek an equitable set-off of her counterclaim with HFW’s claim.
Ms Evans was “entitled to argue there is an inseparable connection between the two because they arise out of the same overall course of dealings between solicitor and client”.
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