Unbundling duty of care

Solicitors offering unbundled services do not have a broader duty of care to their client, the Court of Appeal has held.

The court dismissed Sharon Minkin’s appeal against her solicitor, Lesley Landberg, in Sharon Minkin v Lesley Landsberg (trading as Barnet Family Law) [2015] EWCA Civ 1152.

Minkin claimed her solicitor was negligent for failing to advise her more widely on the terms of her divorce settlement, which she regretted signing. However, Landsberg countered that she had been instructed only to draft a consent order and not to advise on the wisdom of entering into the agreement.

The case centred on the scope of Landsberg’s retainer. Issues of causation and loss also arose.

Giving judgment, Lord Justice Jackson agreed the retainer was limited and rejected the argument that additional advice on the merits of the settlement ought to have been given. He held there was no breach of duty and insufficient causal link to establish a claim.

Lady Justice King highlighted the problems arising from lack of public funding for cases and concluded “serious consequences” could arise if solicitors were not able to accept instructions on a limited retainer basis.

Stephen King, partner, and Andrew Hipper, principal associate, at Mills & Reeve, who acted for Landsberg, say limited retainers are “commonplace”.

“As a matter of practicality, there is a real need for solicitors to be able to give bespoke and limited advice to enable lay clients to deal with matrimonial finance claims in circumstances where they lack the funding for full representation. This decision enables them to do so with a degree of confidence that they will not be held responsible for unexpected outcomes that fall outside the scope of their limited retainer.”